Staff Report/Annexation & Zoning dated 05/03/04Tri-City Planningice
17 Second Street East — Suite 211
Kalispell, Montana 59901
Phone: (406) 758-1850
Fax: (406) 751-1858
tricity@centu rytel. net
www.tricitypianning-mt.com
REPORT TO: Kalispell Mayor and City Council
FROM: Narda A. Wilson, Senior Planner
Chris A. Kukulski, City Manager
SUBJECT: The Greenery - Annexation and Initial Zoning of R-5/PUD,
Residential Professional Office With a Planned Unit Development
Overlay
MEETING DATE: May 3, 2004
BACKGROUND: This is a request by Nolan Holdings, LLC for an initial zoning
designation of R-5/PUD, Residential Professional Office, with a Planned Unit
Development (PUD) overlay upon annexation into the city. The property proposed for
annexation is located at 2050 U.S. Highway 93 which lies at the southwest corner of
the intersection of U.S. Highway 93 North and Four Mile Drive. The property contains
approximately 3.84 acres. In conjunction with the annexation and proposed PUD
zoning designation, a 10 lot mixed -use subdivision for the property has been
submitted. Currently the property is in the County zoning jurisdiction and is zoned
SAG-10, a Suburban Agricultural zoning district that has a ten -acre minimum lot size
requirement.
There are two components to the PUD: One is residential that lies on the western
portion of the site and contains six duplex townhouse sub lots and is accessed from
an existing City street, Parkway Drive. The other component is commercial in nature
and includes four sub lots within a parent tract and has a common access, parking
and landscape area. The entire development contains approximately four acres with
approximately one acre devoted to the residential component and approximately three
acres devoted to the commercial component. It is anticipated that this development
would be completed in one phase with the build out for the entire development to be
approximately two years.
The Kalispell City Planning Board held a public hearing regarding this matter at their
meeting on April 13, 2004. The applicant spoke in favor of the proposal and noted
that he had pulled a previous residential project that the neighbors to the south
objected to because of their views. He felt he had been able to address most of their
concerns. There were several neighbors from the south in Sunrise View Subdivision
who objected to the project because of the impact on their views.
The planning board discussed the issues related to the types of uses proposed, the
impact on the views and the developer's attempts to work with the existing
neighborhood. A motion was made to recommend to the Kalispell City Council that
the property be zoned R-5 PUD, Residential Professional Office upon annexation.
Providing Community Planning Assistance To:
• City of Kalispell • City of Whitefish • City of Columbia Falls •
The Greenery Annexation and Initial Zoning
April 23, 2004
Page 2
RECOMMENDATION: A motion to adopt the first reading of the ordinance for R-5,
PUD upon annexation would be in order.
FISCAL EFFECTS: Minor positive impacts once fully developed.
ALTERNATIVES: As suggested by the city council.
Respectfully submitted,
. Varda A. Wilson
Senior Planner
Report compiled: April 23, 2004
c: Theresa White, Kalispell City Clerk
Chris A. Kukulski
City Manager
Attachments: Transmittal letter
Staff report #KA-04-6 / KPUD-04-3 and application materials
Draft minutes from 4/ 13/04 planning board meeting
Cost of services analysis for residential and commercial
TRANSMIT\ KALISPEL\2004 \KA04-6/ KPUD04-3
A RESOLUTION TO PROVIDE FOR THE ALTERATION OF THE BOUNDARIES OF
THE CITY OF KALISPELL BY INCLUDING THEREIN AS AN ANNEXATION CERTAIN
REAL PROPERTY, AS MORE PARTICULARLY DESCRIBED ON EXHIBIT "A",
LOCATED IN SECTION 1, TOWNSHIP 28 NORTH, RANGE 22 WEST, P.M.M.,
FLATHEAD COUNTY, MONTANA, TO BE KNOWN AS NOLAN ADDITION NO.344; TO
ZONE SAID PROPERTY IN ACCORDANCE WITH THE KALISPELL ZONING
ORDINANCE, AND TO DECLARE AN EFFECTIVE DATE.
WHEREAS, the City of Kalispell has received a petition from Nolan Holdings, LLC, the owner of
property located in the southwest corner of the intersection of US 93 North and Four
Mile Drive, requesting that the City of Kalispell annex the territory into the City, and
WHEREAS, the Tri-City Planning Office has made a report on Nolan Holdings, LLC's
Annexation Request, KA-04-6 and KPUD-04-3, dated April 6, 2004, and
WHEREAS, the Kalispell City Planning Board and Zoning Commission recommended that the
territory be zoned City R-5, Residential/Professional Office with a PUD overlay, on
approximately 3.9 acres, upon annexation into the City of Kalispell, and
WHEREAS, the City of Kalispell desires to annex said property in accordance with Title 7,
Chapter 2, Part 46, Montana Code Annotated.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
KALISPELL AS FOLLOWS:
SECTION I. That all the real property as described on Exhibit "A" be annexed to
the City of Kalispell and the boundary of the City is altered to so
provide, and shall be known as Nolan Addition No. 344.
SECTION II. Upon the effective date of this Resolution, the City Clerk is directed
to make and certify under the seal of the City, a copy of the record of
these proceedings as are entered on the minutes of the City Council
and file said documents with the Flathead County Clerk and
Recorder.
From and after the date of filing of said documents as prepared by the
City Clerk, or on the effective date hereof, whichever shall occur
later, said annexed territory is part of the City of Kalispell and its
citizens and property shall be subject to all debts, laws and ordinances
and regulations in force in the City of Kalispell and shall be entitled
to the same privileges and benefits as are other parts of the City.
SECTION III. The territory annexed by this Resolution shall be zoned in accordance
with the Kalispell Zoning Ordinance.
SECTION IV. This Resolution shall be effective immediately upon passage by the
City Council.
PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE
CITY OF KALISPELL, THIS 3RD DAY OF MAY, 2004.
ATTEST:
Theresa White
City Clerk
Pamela B. Kennedy
Mayor
NOLAN HOLDINGS, LLC
LEGAL DESCRIPTION
The property is described as: Parcel A of Certificate of Survey No. 7966 in
Section 1, Township 28 North, Range 22 West, P.M.M., Flathead County,
Montana, and including that portion of Four Mile Drive that abuts Parcel A
extending to the centerline of the R/W of Four Mile Drive.
The Greenery Annexation
Once annexed to the City, full City services will be made available to the property owner.
Any necessary infrastructure associated with this development will be required to be
constructed in accordance with the City of Kalispell's Design and Construction standards
and any other development policies, regulations or ordinances that may apply. Note,
Four Mile Drive and Parkway Drive are currently owned and maintained by the City and
services are already in place as this is infill annexation.
Number of Dwelling Units within the Subdivision
M
Estimated Increase in Population: (based on US Census Figure of 2.2 per household)
13.2
Cost of Services
Per capita costs
• Fire: $68.84 per person per year.
Additional costs to the fire department
• Police: $110 per resident per year.
Additional costs to the police department
• Administration: $39.48.
Additional cost to administration
13.2 x 68.84 = $ 909
13.2 x 110.00 = $1,452
13.2 x 39.48 = $ 521
• Solid Waste:
Additional cost to solid waste (none for five years) _ $ 0
Lineal Feet Costs: (Lineal feet - No new roads, sewer or water mains)
• Roads: $1.14 per lineal foot
Additional cost in road maintenance 0 x 1.14 = $ 0
• Water: $3.44 per lineal foot
Additional cost in water line maintenance 0 x 3.44 = $ 0
• Sewer: $5.50 per lineal foot
Additional cost in sewer maintenance 0 x 5.50 = $ 0
Storm sewer maintenance costs:
Average Square foot per lot - 6,667
• No. of units x square foot x 0.00323 6,667 x 6 x 0.00323 = $ 129
1
• i " f
Average square foot per lot: 6,667
® Storm sewer assessment $0.00323 per square foot
Revenue from storm sewer assessments 6 x 6,667 x $0.00323 = $129
® Street maintenance assessment $0.0086 per square foot
Revenue from street maintenance assessments 6 x 6,667 x 0.0086 = $344
® Urban forestry assessment $0.00135 per square foot
Revenue from urban forestry assessments 6 x 6,667 x 0.00135= $ 54
Special Assessments: There are no special assessments.
General revenue:
® Assessed value per property: $200,000
Total assessed value: 6 x 200,000 = $ 1,200,000
Total taxable: 1,200,000 x 0.03543 = $ 42,516
Total additional general revenue based on 144.65 mill levy:
42,516 x 0.14465 = $ 6,150
NOTE: This information is based upon assumptions regarding building valuations and
does not take into consideration the build -out time or changes in methods of assessment
and estimated costs associated with services. This information can only be used as a
general estimate of the anticipated cost of services and revenue.
TRANSMITTALS / 2004/ KA04-6COSTOFSVCS
2
The Greenery Annexation
Cost of Services Analysis (Commercial)
Once annexed to the City, full City services will be made available to the property owner.
Any necessary infrastructure associated with this development will be required to be
constructed in accordance with the City of Kalispell's Design and Construction standards
and any other development policies, regulations or ordinances that may apply. Four Mile
Drive is currently a City street and all water and sewer are in place.
Number of Dwelling Units within the Subdivision
N/A
Estimated Increase in Population: (based on US Census Figure of 2.2 per household)
N/A
Cost of Services
Per capita costs
® Fire: $68.84 per person per year.
Additional costs to the fire department
® Police: $110 per resident per year.
Additional costs to the police department
® Administration: $39.48.
Additional cost to administration
® Solid Waste:
Additional cost to solid waste
Lineal Feet Costs: (no new City streets)
® Roads: $1.14 per lineal foot
Additional cost in road maintenance
® Water: $3.44 per lineal foot
Additional cost in water line maintenance
® Sewer: $5.50 per lineal foot
Additional cost in sewer maintenance
Storm sewer maintenance costs:
Square foot 125,820
® square foot x 0.0052
N/A x 68.84 = unknown
N/A x 110.00 = unknown
N/A x 39.48 = unknown
none for five years
none x 1.14 = $ 0
none x 3.44 = $ 0
400 x 5.50 = $ 0
125,820 x 0.0052 = $654
- -.
-. .
Square feet 125,820
® Storm sewer assessment $0.0052 per square foot
Revenue from storm sewer assessments 125,820 x 0.0052 = $ 654
® Street maintenance assessment $0.0086 per square foot
Revenue from street maintenance assessments 125,820 x 0.0086 = $1,082
® Urban forestry assessment $0.00135 per square foot up to $150
Revenue from urban forestry assessments 125,820 x 0.00135= $ 150
Special Assessments: There are no special assessments.
General revenue:
® Assessed value: $ 3,145,500
Total assessed value: $ 3,145,500
Total taxable: 3,145,500 x 0.0346 = $108,834
® Total additional general revenue based on 152.39 mill levy:
108,834 x .15239 = $16,585
I
NOTE: This information is based upon assumptions regarding building valuations and
does not take into consideration the build -out time or changes in methods of assessment
and estimated costs associated with services. This information can only be used as a
general estimate of the anticipated cost of services and revenue.
TRANSMITTALS / 2004/ KA04-6CSTOFSVCS2
2
Tri-City Planningice
17 Second Street East — Suite 211
Kalispell, Montana 59901
Phone: (406) 758-1850
Fax: (406) 751-1858
tricity@centu rytel. net
April 23, 2004
Chris Kukulski, City Manager
City of Kalispell
P.O. Box 1997
Kalispell, MT 59903
Re: Nolan Holdings, LLC - Annexation and Initial Zoning of R-5/PUD,
Residential Professional Office With a Planned Unit Development Overlay
Dear Chris:
The Kalispell City Planning Board met on April 13, 2004 and held a public hearing to
consider a request by Nolan Holdings, LLC for an initial zoning designation of R-
5/PUD, Residential Professional Office, with a Planned Unit Development (PUD)
overlay upon annexation into the city. The property proposed for annexation is
located at 2050 U.S. Highway 93 which lies at the southwest corner of the
intersection of U.S. Highway 93 North and Four Mile Drive. The property contains
approximately 3.84 acres. In conjunction with the annexation and proposed PUD
zoning designation, a 10 lot mixed -use subdivision for the property has been
submitted. Currently the property is in the County zoning jurisdiction and is zoned
SAG-10, a Suburban Agricultural zoning district that has a ten -acre minimum lot size
requirement.
Narda Wilson, of the Tri-City Planning Office, presented staff reports KA-04-6 8,
KPUD-04-3 evaluating the proposed zoning. She noted that the PUD allowed the
developer some flexibility with the setbacks on the building to the east wherein the
northeast corner would be at the property boundary and the southeast corner 18 feet
from the property boundary. This was a result of the odd shape of the lot as well as
the topography. Staff recommended approval of the proposed R-5 / PUD zoning upon
annexation to the city.
During the public hearing the applicant explained his proposal and attempts to try to
protect the view for the neighbors to the south by limiting the height of the buildings.
Several of the neighbors from Sunrise View Subdivision spoke in opposition to the
proposal citing concerns about impacts to their view shed.
The board discussed the proposal and considered the testimony. A motion was made
to recommend to the Kalispell City Council that the property be zoned R-5/PUD,
Residential Professional Office, upon annexation. The conditions are attached at
Exhibit A. The legal description for annexation is attached as Exhibit B.
Providing Community Planning Assistance To:
• City of Columbia Falls • City of Kalispell • City of Whitefish •
Nolan Holdings, LLC Annexation and Initial Zoning
April 23, 2004
Page 2
Please schedule this matter for the May 3, 2004 regular City Council meeting. You
may contact this board or Narda Wilson at the Tri-City Planning Office if you have any
questions regarding this matter.
Sincerely
Kalispell City Planning Board
��--orge
GeTaylor
President
GT/NW/ma
Attachments: Exhibit A - PUD Conditions of Approval
Petition to annex (original)
Exhibit B - legal description
Staff report KA-04-6/KPUD-04-3 and application materials
Draft minutes April 13, 2004 planning board meeting
c w/ Att: Theresa White, Kalispell City Clerk
c w/o Att: Nolan Holdings, LLC, 607 Dakota Ave., Whitefish, MT 59937-2106
Eby 8v Associates, P.O. Box 7144, Kalispell, MT 59904-0144
A2Z Engineering, 42 Village Loop, Kalispell, MT 59901
Sitescape Associates, P.O. Box 1417, Columbia Falls, MT 59912
Nolan Holdings, LLC Annexation and Initial Zoning
April 23, 2004
Page 3
EXHIBIT A
CONDITIONS OF -•
t•.
The Kalispell City Planning Board recommends that the Kalispell City Council adopt staff report
KA-04-6 / KPUD-04-3 as findings of fact and recommends that the property be assigned a
zoning designation of R-5 / PUD subject to the following conditions:
1. That the development of the site shall be in substantial compliance with the application
submitted, the site plan, materials and other specifications as well as any additional
conditions associated with the PUD as approved by the City Council. (Kalispell
Subdivision Regulations, Appendix C - Final Plat)
2. That the construction of the buildings within the commercial component of the PUD shall
be in substantial compliance with the proposed elevation drawings submitted with the
application and subject to review and approval by the Kalispell Site Development Review
Committee.
3. That the plans and specifications for all public infrastructure be designed and installed in
accordance with the Kalispell Design and Construction Standards and a letter shall be
obtained stating that they have been reviewed and approved by the Kalispell Public Works
Department. (Kalispell Subdivision Regulations, Chapter 3, Design Standards, Section
3.01).
4. The following requirements shall be met per the Kalispell Fire Department: Kalispell
Subdivision Regulations, Section 3.20).
a. Water mains designed to provide minimum fire flows shall be installed per City
specifications at approved locations. Minimum fire flows shall be in accordance with
Uniform Fire Code (1997) Appendix III -A.
b. Fire hydrants shall be provided per City specifications at locations approved by this
department, prior to combustible construction.
c. Fire Department access shall be provided in accordance with Uniform Fire Codes.
d. Hazardous weed abatement shall be provided in accordance with City of Kalispell
Ordinance 10-8.
e. Buildings and homes shall be clearly addressed and visible from the adjacent right of
way.
That a curb, gutter, sidewalk and landscape boulevard shall be installed within the right-
of-way along Four Mile Drive with a minimum five feet wide sidewalk and five foot
landscape boulevard. (Kalispell Subdivision Regulations, Section 3.11).
6. That a letter be obtained from the Kalispell Parks and Recreation Director approving a
landscape plan for the placement of trees and landscaping materials within the five foot
landscape boulevard developed between the curb and the sidewalk as well as the
landscaping within the common areas of both the commercial and residential areas of the
site. (Kalispell Subdivision Regulations, Section 3.11).
7. That the required one ninth area be met with a payment of cash in lieu of parkland
dedication in the amount of $1,822 based on a value of approximately $18,000 per acre
Nolan Holdings, LLC Annexation and Initial Zoning
April 23, 2004
Page 4
for the residential component of the subdivision with approximately 0.92 acres in
residential lots and 11 percent or 0.10 of an acre for parkland dedication. (Kalispell
Subdivision Regulations, Section 3.19).
8. The covenants, conditions and restrictions be amended for the commercial component of
the development that addresses signage which limits the development to two freestanding
signs located at each entrance along Four Mile Drive to 24 square feet per face, not to
exceed six feet in height and signs attached to the building shall not exceed 20 square feet
per use. Additionally, any temporary signage shall comply with the Kalispell Zoning
Ordinance.
9. Prior to the issuance of a building permit for the development, a letter from the
Architectural Review Committee for The Greenery shall be submitted to the Kalispell Site
Development Review Committee stating that the plans for design and construction have
been reviewed and approved.
10. Prior to obtaining a building permit for the building located in the northeast corner of the
site, a permit shall be obtained from the Montana Department of Transportation to allow
working within their right-of-way.
11. The developer shall provide a letter from the U.S. Postal Service approving the plan for
mail service. (Kalispell Subdivision Regulations, Section 3.22).
12. Lighting shall be located within the development in a manner that insures it will be
adequately shielded and does not intrude onto adjoining properties. (Kalispell Subdivision
Regulations Section 3.09(L)).
13. All utilities shall be installed underground. (Kalispell Subdivision Regulations, Section
3.17).
14. All areas disturbed during development of the subdivision shall be re -vegetated with a
weed -free mix immediately after development.
15. That a development agreement be drafted by the Kalispell City Attorney between the City
of Kalispell and the Developer outlining and formalizing the terms, conditions and
provisions of approval. The final plan as approved, together with the conditions and
restrictions imposed, shall constitute the Planned Unit Development (PUD) zoning for the
site.
16. That preliminary plat approval for the planned unit development shall be valid for a period
of three years from the date of approval. (Kalispell Subdivision Regulations, Section 2.04).
NOLAN HOLDINGS,
REQUESTO. INITIAL ZONING_
TRI-CITY PLANNING OFFICE
STAFF REPORT 0. D 0.
004
A report to the Kalispell City Planning Board and the Kalispell City Council regarding
the initial zoning of R-5 / PUD upon annexation to the city on property in north
Kalispell. A public hearing has been scheduled before the planning board for April 13,
2004 beginning at 7:00 PM in the Kalispell City Council Chambers. The planning board
will forward a recommendation to the Kalispell City Council for final action.
This report evaluates the appropriate assignment of a City zoning classification in
accordance with Section 27.03.010(4) of the Kalispell Zoning Ordinance. The
developer has petitioned annexation and initial zoning classification of R-5, a
Residential Professional Office, zoning district with a Planned Unit Development (PUD)
overlay. The property is in the County zoning jurisdiction and is zoned County SAG-
10, a Suburban Agricultural Zoning district with a 10 acre minimum lot size. This
property will be annexed under the provisions of Sections 7-2-4601 through 7-2-
4610, M.C.A., Annexation by Petition.
Please note this property was initially reviewed for initial zoning by the planning
board and a public hearing was held in September of 2003. The proposal and
planning board recommendation was not forwarded on to the city council at the
request of the applicant. In the interim the applicant has developed this revised
proposal for reconsideration by the planning board and a new public hearing to be
held.
Technical Assistance:
Nolan Holdings, LLC
607 Dakota Ave.
Whitefish, MT 59937-2106
(406) 862-6061
Eby 8s Associates
P.O. Box 7144
Kalispell, MT 59904
A2Z Engineering
42 Village Loop
Kalispell, MT 59901
Sitescape Associates
P.O. Box 1417
Columbia Falls, MT 59912
B. Nature of the Request: This is a request for an initial zoning designation of R-5,
Residential / Professional Office, with a Planned Unit Development overlav on
1
approximately 3.836 acres for a mixed use development. The property is located
in northwest Kalispell on the southwest corner of US Hwy 93 and Four Mile Drive
and has operated as a landscaping business, The Greenery. Currently this
property is in the County zoning jurisdiction and is zoned SAG-10, a Suburban
Agricultural zoning district that has a minimum lot size requirement of 10 acres
for newly created lots.
It is the intent of this PUD to allow for a mix of uses that include professional
offices and duplex townhouse dwellings. The PUD approach allows the developer
some flexibility in lot sizes, housing types and site configuration that would not
otherwise be allowed under a strict R-5 zoning designation. The R-5 zoning has a
minimum lot size requirement of 7,000 square feet and a minimum lot width of
70 feet. The PUD approach allows some flexibility in lot size and design in
exchange for predictability in the layout of the site and type and location of the
buildings.
This development proposal includes a subdivision that has ten lots that are both
residential and commercial in nature. The residential is comprised of three
duplex townhouses for a total of six residential sub lots. The commercial has
four commercial sub lots with commonly owned and maintained parking and
landscape areas. Each of the four professional offices will be two stories with a
semi -subterranean first floor so that the elevation of the building does not
impede the view the residents to the south currently enjoy. The buildings would
be similar in architecture to residential features in order to be compatible with
the immediate area. Each building would consist of a total of approximately
9,000 square feet that would include both floors. The residential component of
the development lies to the west at the entrance to Sunrise View subdivision
while the commercial component fronts along the south side of Four Mile Drive.
C. Location and Legal Description of Property: The property proposed for
annexation and initial zoning lies at the southwest corner of the intersection of
US 93 North and Four Mile Drive. The property address is 2050 Hwy 93 and can
be described as Assessor's Tract 2XB (Parcel A of COS# 7966) in Section 1,
Township 28 North, Range 22 West, P.M.M., Flathead County, Montana.
D. Existing Land Use and Zoning: The site has traditionally been used for a
landscaping business that has been liquidated for the purpose of redevelopment.
The property is in the County zoning jurisdiction and is zoned SAG-10,
Suburban Agricultural which has a minimum lot size requirement of ten acres for
newly created lots. This zoning is typically found in areas where limited
agricultural pursuits are encouraged or in this particular case the zoning that
has been used to retain this area as an urban reservation for future development.
E. Adjacent Land Uses and Zoning: The general land use character of this area is
a mix of uses with primarily single family residential to the south and east with
the community college to the northeast, sports field complex to the north and
undeveloped land to the west.
2
North: Youth athletic complex, City P-1 zoning
South: Single family residential, City R-4 zoning
East: Single family residential, City R-3 zoning
West: Undeveloped, County SAG-10 zoning
�. General Land Use Character: The general land use character of this area is in
transition from agricultural to more urban type densities and development as
public utilities and facilities become available to the area.
G. Utilities and Public Services:
Sewer:
City of Kalispell
Water:
City of Kalispell
Refuse:
City of Kalispell
Electricity:
Flathead Electric Cooperative
Telephone:
CenturyTel
Schools:
School District #5
Fire:
Kalispell Fire Department
Police:
City of Kalispell
H. Relation to Zoning Requirements: This property contains a total of 3.836
acres with approximately 1.05 acres in lots and 1.51 acres in common area.
Under the Kalispell Zoning Ordinance Section 27.21.030(4), the R-5 zoning
district with a PUD overlay would allow a maximum of 14 dwelling units per
acre. However, since this is a mixed use PUD the density for dwelling units is
not entirely applicable. The R-5 zoning allows single family and duplex
dwellings as permitted uses as well as medical and professional offices. The
duplex townhouse lots would be accessed from existing Parkway Drive to the
west while the office buildings would be accessed from Four Mile Drive. The
office building nearest to Hwy 93 will require a variance to the 15-foot side
corner setback requirement of the R-5 zoning district in the northeast corner of
the building.
A variance to the setback requirements on the side corner would be nearly to
the property boundary at the northeastern most corner and would gradually
increase to approximately 18 feet at the southeastern most corner. This would
allow the building to be oriented in a north south direction as well as to provide
a better site design with regard to parking, back-up space for parking and
landscaping.
Additionally, signage for the development deviate from zoning in that more than
one freestanding sign is being proposed. Since the development includes sub
lots with common area in parking, landscaping and other common area, the
strict interpretation of zoning would only allow one freestanding sign. In a
more traditional subdivision configuration, each of the individual lots would be
allowed a single freestanding sign not to exceed 24 feet per face and six feet in
height in addition to a 20 square foot wall sign per use. Although sign
locations are noted on the site plan and generally addressed in the covenants,
3
no specifications are noted. There are no other deviations from zoning that are
recognized in the application package.
The statutory basis for reviewing a change in zoning is set forth by 76-2-205, M.C.A.
and the Kalispell Zoning Ordinance. Findings of fact for the zone change request are
discussed relative to the itemized criteria described by 76-2-203, M.C.A and Section
27.30.020, Kalispell Zoning Ordinance.
The Kalispell Growth Policy anticipates that this area would be developed as
Urban Residential which anticipates a density of three to 12 dwelling units per
acre. The area that would be annexed and designated as R-5/PUD contains
approximately 3.836 acres and would be considered a mixed -use development.
The Kalispell Growth Policy 2020 addressed mixed used areas under Chapter
4, Business and Industry, Section 7, Urban Mixed Use Areas. Subsection 1
encourages the development of compact centrally located service and
employment areas that provide easy connections between existing commercial
and residential neighborhoods. The commercial development to the north of
the athletic fields and the residential development to the south help this
development function as a transition area between the two uses. The proposed
development is in general compliance with the goals and policies of the
Kalispell Growth Policy and the creation of mixed -use areas.
Development of this property will not lessen congestion, but the existing
roadways in the immediate area are intended to handle fairly large volumes of
traffic with Four Mile Drive to the north designated as a collector and US Hwy
93 to the east designated as a major arterial. The intersection at Four Mile
Drive and Hwy 93 is controlled by a traffic light. Any impacts that this
development would have on overall traffic volumes in the area would be
relatively insignificant.
3. Will th_e requested zone secure safety from fire, panic, and n her dnngPrs,'�
This property will be developed in accordance with City of Kalispell
development standards, the uniform Fire Code and any other applicable safety
standards. The development will have two accesses onto Four Mile Drive and
no access onto Hwy 93 thereby providing good vehicular and emergency access
to the site while avoiding unnecessary traffic conflicts with Hwy 93 traffic. The
site design will secure safety from fire and other dangers.
The proposed development of the site promotes the health and welfare of the
community with regard to the density, setbacks, lot coverage access and
N
provision of public services. The use of a creative design for residential
development as well as the commercial component promotes the general
welfare of the residents of the development as well as the community as a
whole. The residents to the south will have a predictable development in their
neighborhood that will be compatible with the residential character and will
preserve important visual qualities they now enjoy.
The planned unit development deviates from the zoning regulations with regard
to the anticipated setbacks on the eastern building, but would not negatively
impact the overall site design or other standards of the proposed R-5 zoning for
the site. The proposed deviations are intended to provide a more creative
design that will lead to a better overall development and a sense of community
and neighborhood integrity. The overall site design will insure adequate light
and air within the development and the neighborhood as a whole.
The requested zoning designation and anticipated land uses within the site are
easily accommodated within the land area available for development. The
anticipated uses would be general office use which could include some medical
uses in the commercial component. The uses will be dictated by the available
parking area which has been established with the proposed site plan. The
requested zoning will not contribute to the overcrowding of land.
Increased concentration of people in this area will likely result after this land
have been converted from an undeveloped state to a more intensive missed
residential and commercial use. There will be a more intensive use of the
property, however, the intensity of the uses of the property would be in direct
relationship to the availability of public services, utilities and the transportation
network in the immediate area. The infrastructure in the area is adequate to
insure that there trrill not be an overcrowding f the land or undue concentration
of people.
XSEMMOINURIM"Re • - • •• • .• •MUMMIAMAIMMI
••• MOTSOMWIT'Grel • 69 MONOMIZIGROMOM••-•
New improvements to the property such as access, water, sewer, parks and
drainage would be installed in accordance with City policies and standards
thereby insuring that there is adequate provision of services to the site prior to
development. Fire, police, ambulance and public access are adequate to
accommodate potential impacts associated with the development of this site.
There will be some limited impacts to public services and facilities which can be
anticipated as a result of this proposal which can be met by the City and are not
5
beyond the scope of that which would be anticipated to occur in this area.
The proposed PUD development plan and zoning is compatible with surrounding
land uses and quality development within the city by, creating a residentially
compatible commercial development that is not out of scale with the residential
uses to the south. Additionally, the townhouse development to the west provides
a residential component with reasonable density along Parkway Drive, the
entrance to the residential area to the south. Access to public services are within
reasonable proximity to the site as well as access to other services such as the
community college, sports field complex and commercial uses in the areas. This
rezoning gives reasonable consideration to the suitability of this property for the
proposed use and concurrent zoning proposal.
The general character of the area is a mix of uses and has been an area of
transition for several years. Once nearby agricultural areas have been
redeveloped into a number of mixed uses compatible with this development
which started with the community college to the east, a large commercial
development to the north, the sports complex also to the north as well as a
church and residential uses to the south. This mixed -use development is
compatible with the other mix of uses in the area and will contribute to quality
development in the immediate neighborhood.
Most potentially effected properties that are in this neighborhood would
experience some limited impacts with the construction of this mixed -use
development. However, it seems that it would be the neighborhood to the
immediate south that would be most affected by the development, apparently
preferring the predictability of the planned unit development with limited heights
on the buildings to a higher density residential development with unknown
architectural and site design. The proposed development will contribute to the
overall integrity of the neighborhood and the value of existing buildings will be
protected, maintained and conserved.
1 •- -• -• ••- -• MORIM-11=16TOFIR• Rloioj#Lolojor..IrimillI.Timl�sm•' ..••
The Kalispell Growth Policy future land use designations anticipates a mixed use
development such as the one being proposed within certain areas of the
community. The development proposal appears to encourage the most
appropriate land use for this property and throughout the planning jurisdiction
and will provide another component to an existing mixed -use area.
I
Project Narrative: This is a request for an initial zoning designation of R-5,
Residential / Professional Office, with a Planned Unit Development overlay on
approximately 3.836 acres located at the southwest corner of Four Mile Drive and
Hwy 93. This approximately four -acre site is presently zoned SAG-10, a Suburban
Agricultural zoning district in the County zoning jurisdiction. This approximately four
acre site is surrounded by the city of Kalispell with the community college to the
northeast, the sports field complex to the north, residential development to the south
and east and a church to the southwest. There is a mix of uses in the immediate area
creating an environment where this mixed -use development would be compatible and
complementary to other uses in the area.
The developer is proposing the creation of a ten lot subdivision that will have six
townhouse sub lots to the west and four commercial / office sub lots on the south
side of Four Mile Drive. The R-5 zoning allows single family and duplex dwellings as
permitted uses in the zone as well as professional and medical offices. The planned
unit development allows some flexibility within the zoning regulations in exchange for
predictability in the development that will occur on the site.
It would be the intent of this development to provide a transition between the
residential subdivision to the south and the commercial developments to the north
while working within the R-5 zoning district range of uses. The location of the
property in close proximity to the Four Mile Drive and Hwy 93 intersection provides
good controlled access to and from the site while remaining sensitive to other
residential development in the area. The commercial component of the PUD will
include four office buildings that will not exceed 22 feet in height and a total of 9,000
square feet. The first floor of the buildings will be slightly below grade thereby
providing the opportunity for a two-story building but without a height that would
interrupt the views of the residents to the south. The residential component to the
west of the site will provide a good transition from the commercial uses to the existing
residential uses on the access road, Parkway Drive, to the subdivision.
Development would occur in a single phase and it would be anticipated that building
out would occur within two years. The uses within the commercial component would
be limited to professional offices and perhaps limited medical offices since the parking
requirements would be established by the site plan.
r`.ril-eria Fier the Creation of o Planned Unit Development (PUD) District
The following information and evaluation criteria are from Section 27.21.020(2), of the
Kalispell Zoning Ordinance. The intent of the planned unit development provisions
are to provide a zoning district classification which allows some flexibility in the
zoning regulations and the mixing of uses which is balanced with the goal of
preserving and enhancing the integrity of the neighborhood and the environmental
values of an area. The zoning ordinance has a provision for the creation of a PUD
district upon annexation of the property into the city.
7
Review of Application Based Tpon P D Evaluation Criteria: The zoning
regulations provide that the planning board shall review the PUD application and plan
based on the following criteria:
1. The extent to which the plan departs from zoning and subdivision
regulations otherwise applicable to the subject property, including, but not
limited to, density, bulk and use, and the reasons why such departures are
or are not deemed to be in the public interest;
The planned unit development deviates from the zoning with regard to the setback
requirements for the building at the eastern portion of the site nearest Hwy 93 which
is determined to be a side corner with a minimum setback requirement of 15 feet in
the R-5 zoning district which is measured from the building eave. The northeast
corner of the building would be placed generally at the property boundary with a
gradual increase in the setback for the building to 18 feet at the southeast corner of
the building. This would allow generally several objectives associated with the
development one of which would be to allow the orientation of the building in a more
north / south direction while also making better use of the site with regard to parking
and needed back-up space for parking. Additionally, the foundation for the building
would be designated to function as a retaining wall so fill can be placed between the
building and the slope up to Hwy 93.
Additionally, a deviation from the strict interpretation of the sign regulations appears
to at least be indicated on the site plan with two entrance signs being proposed
although no specific size and height specifications have been provided. Under the
proposed R-5 zoning designation signage is limited to a single 24 square foot sign per
parcel not to exceed six feet in height plus a 20 square foot wall sign per use. The
proposed covenants touch on sign standards but are not definitive. Since there would
be four sub lots within the parent tract of land, the staff would support the
establishment of two signs at the proposed entrance locations. However, the
remaining standards should apply. The covenants will need to be amended to require
that the wall signage, use of banners and lights comply with the City sign standards.
2. The nature and extent of the common open space in the planned
development project, the reliability of the proposals for maintenance and
conservation of the common open space and the adequacy or inadequacy of
the amount and function of the open sp ace in terms of the land use,
densities and dwelling types proposed in the plan;
Open space is defined in the Kalispell Zoning Ordinance as "Any part of a lot
unobstructed from the ground upward. Any area used for parking or maneuvering of
automotive vehicles or storage of equipment or refuse shall not be deemed open
space." However, on a practical basis open space is much more than simply the
undeveloped land around a building that could mean the setback areas. Specific
common area is proposed within the development in the form of a landscape area to
the west of the commercial component and east of the townhouses. This area can
function as snow storage, landscape and green space for the development and would
be commonly owned and maintained by the owners of lots within the commercial
component of the development. A draft copy of the covenants, conditions and
I
restrictions associated with the Greenery development have been submitted with the
application that addresses assessments and the maintenance of common area.
Additionally, there is common area around the townhouses which would be
commonly owned, enjoyed and maintained by the homeowners within the residential
component of the development. The assessment and maintenance of these common
areas has been addressed through a separate set of covenants, conditions and
restrictions associated with this portion of the development.
3. The manner in which said plan does or does not make adequate provision
for public services, provide adequate control over vehicular traffic and
further the amenities of light or air, recreation and visual enjoyment;
Currently this site has access to and is adjacent to Kalispell water and sewer as well
as public roads. The extension of services would be limited to those needed in order
to comply with the Uniform Fire Code or other fire safety issues. Storm water will be
retained on site and is intended to be integrated into the overall landscaping. No
detailed plan for handling drainage has been submitted with the application, but a
plan for storm water management will need to be designed in accordance with City
standards and will be reviewed and approved by the Kalispell Public Works
Department. The site has direct access onto Four Mile drive and is close to the
controlled intersection of Four Mile Drive and US Hwy 93 and would result in minimal
impacts to the overall provision of public services, utilities and infrastructure to the
area. Additionally, the design of the buildings within the commercial component is
intended to preserve the views of the established residential area to the south by not
exceeding an overall height of 22 feet from the existing grade. The youth athletic
complex lies to the north of this property providing a ready recreational amenity to the
residents of the town homes. The community college lies to the northeast of the site
providing access to both recreational and educational opportunities.
4. The relationship, beneficial or adverse, of the planned development
project upon the neighborhood in which it is proposed to be established;
Initially the developer had proposed a higher density residential development which
was not embraced by the residents of Sunrise View Subdivision to the south of this
site. Subsequently the developed solicited input from the neighbors and found that
their concerns were the preservation of the views to the north and east, property
values, traffic and overall neighborhood impact. The design of The Greenery is
intended to address the concerns of the neighbors but limiting building height and
size to preserve the views and design buildings that are similar in scale and
architectural design. Limiting the types of commercial uses in the commercial
component and therefore the hours of operation will address traffic and neighborhood
impacts.
S. In the case of a plan which proposes development over a period of years,
the sufficiency of the terms and conditions proposed to protect and
maintain the integrity of the plan which finding shall be made only after
consultation with the city attorney;
0
It is anticipated that this development would not occur in phases but would rather be
constructed in a single phase that would anticipate full build out within two years of
the initiation of construction.
6. Conformity with all applicable provisions of this chapter.
No other specific deviations from the Kalispell Zoning Ordinance can be identified
based upon the information submitted with the application.
Staff recommends that the Kalispell City -County Planning Board adopt staff report
KA-04-6 / KPUD-04-3 as findings of fact and recommend to the Kalispell City Council
that the property be assigned a zoning designation of R-5 / PUD subject to the
following conditions:
1. That the development of the site shall be in substantial compliance with the
application submitted, the site plan, materials and other specifications as well as
any additional conditions associated with the PUD as approved by the City
Council. (Kalispell Subdivision Regulations, Appendix C - Final Plat)
2. That the construction of the buildings within the commercial component of the
PUD shall be in substantial compliance with the proposed elevation drawings
submitted with the application and subject to review and approval by the
Kalispell Site Development Review Committee.
3. That the plans and specifications for all public infrastructure be designed and
installed in accordance with the Kalispell Design and Construction Standards
and a letter shall be obtained stating that they have been reviewed and approved
by the Kalispell Public Works Department. (Kalispell Subdivision Regulations,
Chapter 3, Design Standards, Section 3.01).
4. The following requirements shall be met per the Kalispell Fire Department:
Kalispell Subdivision Regulations, Section 3.20).
a. Water mains designed to provide minimum fire flows shall be installed per
City specifications at approved locations. Minimum fire flows shall be in
accordance with Uniform Fire Code (1997) Appendix III -A.
b. Fire hydrants shall be provided per City specifications at locations approved
by this department, prior to combustible construction.
C.
Fire Department access shall be provided in accordance with Uniform Fire
Codes•
d. 'Hazardous weed abatement shall be provided in accordance with City of
Kalispell Ordinance 10-8.
e. Buildings and homes shall be clearly addressed and visible from the adjacent
right of way.
10
5. That a curb, gutter, sidewalk and landscape boulevard shall be installed within
the right-of-way along Four Mile Drive with a minimum five feet wide sidewalk
and five foot landscape boulevard. (Kalispell Subdivision Regulations, Section
3.11).
6. That a letter be obtained from the Kalispell Parks and Recreation Director
approving a landscape plan for the placement of trees and landscaping materials
within the five foot landscape boulevard developed between the curb and the
sidewalk as well as the landscaping within the common areas of both the
commercial and residential areas of the site. (Kalispell Subdivision Regulations,
Section 3.11).
7. That the required one ninth area be met with a payment of cash in lieu of
parkland dedication in the amount of $1,822 based on a value of approximately
$18,000 per acre for the residential component of the subdivision with
approximately 0.92 acres in residential lots and 11 percent or 0.10 of an acre for
parkland dedication. (Kalispell Subdivision Regulations, Section 3.19).
8. The covenants, conditions and restrictions be amended for the commercial
component of the development that addresses signage which limits the
development to two freestanding signs located at each entrance along Four Mile
Drive to 24 square feet per face, not to exceed six feet in height and signs
attached to the building shall not exceed 20 square feet per use. Additionally,
any temporary signage shall comply with the Kalispell Zoning Ordinance.
9. Prior to the issuance of a building permit for the development, a letter from the
Architectural Review Committee for The Greenery shall be submitted to the
Kalispell Site Development Review Committee stating that the plans for design
and construction have been reviewed and approved.
10. Prior to obtaining a building permit for the building located in the northeast
corner of the site, a permit shall be obtained from the Montana Department of
Transportation to allow working within their right-of-way.
11. The developer shall provide a letter from the U.S. Postal Service approving the
plan LVr m.- I sel %71ce. (ilallspell Subdivision Regulations, Section 3.22).
12. Lighting shall be located within the development in a manner that insures it will
be adequately shielded and does not intrude onto adjoining properties. (Kalispell
Subdivision Regulations Section 3.09(L)).
13. All utilities shall be installed underground. (Kalispell Subdivision Regulations,
Section 3.17).
14. All areas disturbed during development of the subdivision shall be re -vegetated
with a weed -free mix immediately after development.
11
15. That a development agreement be drafted by the Kalispell City Attorney between
the City of Kalispell and the Developer outlining and formalizing the terms,
conditions and provisions of approval. The final plan as approved, together with
the conditions and restrictions imposed, shall constitute the Planned Unit
Development (PUD) zoning for the site.
16. That preliminary plat approval for the planned unit development shall be valid for
a period of three years from the date of approval. (Kalispell Subdivision
Regulations, Section 2.04).
REPORTS \KALISPELL\KA04-6 / KPUD04-3.DOC
M
12
Tri-City Planning Office
17 Second St East, Suite 211
Kalispell, NIT 59901
Phone: (406) 751-1850 Fax: (406) 751-1858
PETITION FOR ANNEXATION AND INITIAL ZONING
CITY OF KALISPELL
NAME OF APPLICANT: Nolan Holdings, LLC
MAIL ADDRESS: 607 Dakota Avenue
CITY/STATE/ZIP: Whitefish, MT 59937 PHONE: 4 0 6— 8 6 2— 6 0 61
INTEREST IN PROPERTY: Owner
Other Parties of Interest to be Notified:
PARTIES OF INTEREST:
MAIL ADDRESS:
CITY/STATE/ZIP:
INTEREST IN PROPERTY:
PLEASE COMPLETE THE FOLLOWING:
Address of the property:
2050 HWY 93
PHONE:
Legal Description: County Tract 2XB (Parcel A, COS 7966) , Section 1, Township
(Lot and Block of Subdivision; Tract #)
28 North, Range 22 West, Flathead County, Montana
(Section, Township, Range) (Attach metes and bounds as Exhibit A)
The present zoning of the above property is;
SAG-10
The proposed zoning of the above property is: Mixed use PUD—R-5
State the changed or changing conditions that make the proposed amendment necessary:
—Change in ownership
—Mixed use PUD
The signing of this application signifies that the foregoing information is true and accurate based upon the
best infonnatior}/available and farther grants approval for Tri-City Planning staff to be present on the
property for ror(tine inspection/quKg the anr)exation process.
(Applicant)
March 8, 2004
(Date)
1
PETITION TO ANNEX
AND
NOTICE OF WITHDRAWAL FROM RURAL FIRE DISTRICT
The undersigned hereinafter referred to as Petitioner(s) respectfully petition the City Council of
the City of Kalispell for annexation of the real property described below into the City of
Kalispell.
The Petitioner(s) requesting City of Kalispell annexation of the property described herein and
further described in Exhibit A hereby mutually agree with the City of Kalispell that immediately
upon annexation of the land all City of Kalispell municipal services will be provided to the
property described herein on substantially the same basis and in the same manner as such services
are provided or made available to other properties within the rest of the municipality.
Petitioner(s) hereby state that there is no need to prepare a Municipal Annexation Service Plan for
this annexation pursuant to Section 7-2-4610, M.C.A. since the parties are in agreement as to the
provision of municipal services to the property requested to be annexed.
The Petitioner(s) fort r herei/'express n intent to have the property as herein described
withdrawn from the 'T V l�41-415 � Rural Fire District under the provisions of Section
7-33-2127, Montana Code Annotated; and that incorporated into this Petition to Annex is the
Notice requirement pursuant to said Section; and that upon proper adoption of an ordinance or
resolution of annexation by the City Council of the City of Kalispell, the property shall be
detracted from said district.
In the event the property is not immediately annexed, the Petitioner(s) further agree(s) that this
covenant shall run to, with, and be binding upon the title of the said real property, and shall be
binding upon our heirs, assigns, successors in interest, purchasers, and any and all subsequent
holders or owners of the above described property.
This City hereby agrees to allow Petitioner(s) to connect and receive the utilities from the City of
Kalispell.
This City hereby agrees to allow Petitioner(s) to connect and receive all available utilities from
the City of Kalispell excluding solid waste services. MCA 7-2-4736 prohibits the city from
providing solid waste services to this property fXminimm of 5 years frto of nnexatio .Owner to
Petitioner/Owner Date
Please return this petition to:
Tri-City Planning Office
17 2nd St East, Suite 211
Kalispell MT 59901
NOTE: You must attach an Exhibit A that provides a bona fide legal description of the property
to be annexed that has been reviewed and certified by the Flathead County Plat Room.
STATE OF MONTANA )
ss
County of Flathead County
On this g day of K�6Lcr a0Q4, before me, the undersigned, a Notary Public for
the State of Montana, personally appeared VV o16t known
to me to be thy,:person,whose name is subscribed to the foregoing instrument and acknowledged
to me tl�at.liefshe exet ite,� the same.
IN, WITNESS, WHEREQ'17',tj have hereunto set my hand and affixed my Notary Seal the day and
year in this cer#i-elt ate first Love written.
JJ-
l `P
ota�c, State of NfoAtana >oc�hn L 1i
Residing at Cd k ,.,, . c, Falbry
My Commission expires: �P �G Q.Oe
D(p
STATE OF MONTANA )
ss
County of Flathead County
On this day of , before me, the undersigned, a Notary Public for
the State of Montana, personally appeared known
to me to be the person whose name is subscribed to the foregoing instrument and acknowledged
to me that he/she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal the day and
year in this certificate first above written.
STATE OF MONTANA )
ss
County of Flathead
Notary Public, State of Montana
Residing at
My Commission expires:
On this day of , before me, the undersigned, a Notary Public for
The State of Montana, personally appeared and
,the and
respectively, of the
corporation that executed the foregoing instrument, and the persons who executed said instrument
on behalf of said corporation, and acknowledged to me that such corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notary Seal the day and
year in this certificate first above written.
Notary Public, State of Montana
Residing at
My Commission expires
Tri-City Planning Office
17 Second St East, Suite 211
Kalispell, MT 59901
Phone: (406) 751-1850 Fax: (406) 751-1858
CITY OF KALISPELL
APPLICATION FOR PLANNED UNIT DEVELOPMENT (PUD)
PROJECT NAME The Greenery PUD
1
2.
3
NAME OF APPLICANT: Nolan Holdings,
MAIL ADDRESS: 607 Dakota Avenue
CITY/STATE/ZIP: Whitefish, MT 59937
LLC
PHONE: 8 8 5- 6 0 61
NAME AND ADDRESS OF OWNER IF DIFFERENT THAT APPLICANT:
4. NAME: Same
5. MAIL ADDRESS:
6. CITY/STATE/ZIP: PHONE:
7. TECHNICAL ASSISTANCE: A2 Z Engineering
8. MAIL ADDRESS: 42 Village Loop,
9. CITY/STATE/ZIP: Kalispell, MT 59901 PHONE: 755-7888
If there are others who should be notified during the review process, please list those.
Check One:
X Initial PUD proposal
Amendment to an existing PUD
A. Property Address: 2050 HWY 93
B. Total Area of Property: 3 .836 acres - 165,975 sq. ft.
C. Legal description including section, township &, range: County Tract 2XB
(Parcel A, C.O.S. 7966), Section 1, Township 28 North, Range 22 Wes
Flathead County, Montana
D. The present zoning of -he above property is: SAG 10
1
E. Please provide the following information in a narrative format with supporting
drawings or other format as needed:
a. An overall description of the goals and objectives for the development of
the project.
b. In cases where the development will be executed in increments, a
schedule showing the time within phase will be completed.
C. The extent to which the plan departs from zoning and subdivision
regulations including but not limited to density, setbacks and use, and
the reasons why such departures are or are not deemed to be in the
public interest;
d. The nature and extent of the common open space in the project and the
provisions for maintenance and conservation of the common open space;
and the adequacy of the amount and function of the open space in terms
of the land use, densities and dwelling types proposed in the plan;
e. The manner in which services will be provided such as water, sewer,
storm water management, schools, roads, traffic management,
pedestrian access, recreational facilities and other applicable services
and utilities.
f. The relationship, beneficial or adverse, of the planned development
project upon the neighborhood in which it is proposed to be established
g. How the plan provides reasonable consideration to the character of the
neighborhood and the peculiar suitability of the property for the
proposed use.
h. Where there are more intensive uses or incompatible uses planned
within the project or on the project boundaries, how with the impacts of
those uses be mitigated.
i. How the development plan will further the goals, policies and objectives
of the Kalispell Growth Policy.
;. include site plans, drawings and schematics with supporting narratives
where needed that includes the following information:
(1). Total acreage and present zoning classifications;
(2). Zoning classification of all adjoining properties;
(3). Density in dwelling units per gross acre;
(4). Location, size height and number of stories for buildings
and uses proposed for buildings;
(5). Layout and dimensions of streets, parking areas,
pedestrian walkways and surfacing;
2
(6). Vehicle, emergency and pedestrian access, traffic
circulation and control;
(7) . Location, size, height, color and materials of signs;
(8). Location and height of fencing and/or screening;
(9). Location and type of landscaping;
(10). Location and type of open space and common areas;
(11). Proposed maintenance of common areas and open space;
(12). Property boundary locations and setback lines
(13). Special design standards, materials and / or colors;
(14). Proposed schedule of completions and phasing of the
development, if applicable;
(15). Covenants, conditions and restrictions;
(16). Any other information that may be deemed relevant and
appropriate to allow for adequate review.
If the PUD involves the division of land for the purpose of conveyance, a preliminary
plat shall be prepared in accordance with the requirements of the subdivision
regulations.
Please note that the approved final plan, together with the conditions and restrictions
imposed, shall constitute the zoning for the district. No building permit shall be
issued for any structure within the district unless such structure conforms to the
provisions of the approved plan.
The signing of this application signifies that the aforementioned information is true
and correct and grants approval for Tri-City Planning staff to be present on the
property for routine monitoring and inspection during review process.
March 8, 2004
(Applic6nt Signature) (Date)
• -s
A. Pre -Application Meeting:
A discussion with the planning director or designated member of staff must
precede filing of this application. Among topics to be discussed are: Master
Plan or Growth Policy compatibility with the application, compatibility of
proposed zone change with surrounding zoning classifications, and the
application procedure.
B. Completed application form.
C. Application fee per schedule, made payable to the Tri-City Planning Office.
PUD Zoning Review Fee
Residential $700.00 + $25/acre
Commercial $800.00 + $25/acre
Mixed Use $850.00 + $25/acre
* Deduct $200 from PUD fee if application is concurrently submitted with a
preliminary plat.
D. A bona fide legal description of the subject property and a map showing the
location and boundaries of the property.
E. A list of the names and mailing addresses of all property owners within 150 feet
of the subject property as shown on the Assessor's roll. Public streets and right
of ways are not included in the 150 feet.
Assessor No Sec-Twn-Rn Lot/Tract No Property Owner & Mailing Address
Please consult the with staff of the Tri-City Planning Office for submittal dates and
dates for the planning board meeting at which it will be heard in order that
requirements of state statutes and the zoning regulations may be fulfilled. The
application must be accepted as complete forty-five (45) days prior to the scheduled
planning board meeting.
Effective 3/ 15/04
4
E. Supportive Documentation, The Greenery Professional Park Planned Unit
Development:
Item a. An overall description of the goals and objectives for the development of the
project.
The Greenery mixed use PUD is located at the southwest corner of HWY 93 and Four Mile
Drive, the former site of The Greenery nursery. The four acre site is presently zoned SAG 10 and is
encircled by the city of Kalispell. The adjacent Kalispell zoning districts are R-3 to the east, R-4 to
the west and south and P-1 to the north.
The primary goals and objectives for The Greenery mixed use PUD is to create a buffer
between the Sunrise View R-4 residential subdivision and the commercial districts to the north while
providing a well planned PUD within the intent and structure of the R-5 residential/professional
office district. The Montana Department of Natural Resources and Conservation owns the large
parcel of land to the north bounded by HWY 93, West Reserve Drive, Stillwater Road and Four Mile
Drive (Sec 36, T29N, R22W). With the DNRC's mandate to manage its lands to return the highest
economic yield for the Montana School Trust Fund, the pressure to lease the easterly portion
between Four Mile Drive and West Reserve Drive abutting HWY 93N will control its development
and I believe we should anticipate that commercial development of the DNRC's HWY 93 corridor
property.
The R-5 district offers the best transitional buffer for the Sunrise View Subdivision and R-4
districts beyond.
The office cluster of four structures will be located at the lowest elevation of the site with
three residential duplex townhomes located on the upper plateau to the west along Parkway Drive
creating a pleasing transition into the Sunrise View neighborhood.
Item b. In cases when the development will be executed in increments, a schedule showing
the time within phase will be completed
The Greenery PUD is not anticipated to be developed in phases. 'For Sale' office space is
presently being absorbed at a brisk rate. The townhome market is also firm. The developer projects
The Greenery PUD to build out in two years.
Item c. The extent to which the plan departs from zoning and subdivision regulations
including but not limited to density, setbacks and use, and the reasons why such
departures are or are not deemed to be int the public interest
Within the flexibility of the PUD the developer is requesting the 'D' office building on HWY
93 be allowed to be positioned with the northeast corner abutting the property line and southwest
corner placed approximately 18' from the property line. The foundation would be designed and act
as a retaining gall so as to fill the slope between the building and HWY 93, subsequently realigning
the city bike and pedestrian pathway away from the edge of HWY 93. Other than the 'D' setback
alignment the PUD does not depart from zoning or subdivision regulations.
The fill dirt behind the D' building and all of the excavated export dirt will be donated to the
Kalispell Parks and Recreation at market value, allowing Parks and Rec. to receive matching funds
for the donated value.
Item d The nature and extent of the common open space in the project and the provisions
for maintenance and conservation of the common open space; and the adequacy
of the amount and function of the open space in terms of the land use, densities
and dwelling types proposed in the plan;
As presented The Greenery Development contains 21,760 sq ft lot coverage of office space
(13%)', 9,000 sq ft lot coverage of residential space (5%)1, 71,393 sq ft of hard surface lot coverage
(4) ) and retains 66,000 sq ft (40%) open space. The largest area of open space is achieved around
the townhomes and between the office cluster creating a natural buffer between the two uses.
Item e. The manner in which services will be provided such as water, sewer, storm
water management, schools, roads, traffic management, pedestrian access,
recreational facilities and other applicable services and utilities.
The Greenery Development is adjacent to all Kalispell utility services. Storm water will be
managed on site with primary and secondary retention and detention and planted landscaping areas.
No extension of services will be required. The property is directly accessible to HWY 93 from Four
Mile Drive. Peterson Elementary School, Kalispell Junior High and the proposed second Kalispell
High School located in Sec 36 are within close proximity. The Kalispell Youth Athletic Complex
and FVCC are directly across Four Mile Drive and HWY 93. Kalispell Regional Medical Center and
numerous health care providers are within 1/4 mile.
Item f. The relationship, beneficial or adverse, of the planned development project upon
the neighborhood in which it is proposed to be established
- It has been the pleasure of the developer to work closely with the residents of the Sunrise
View subdivision in addressing their \�Vllcerlls. Their �cused concerns were density, try c, views
and property values among others.
The Greenery preliminary plat design and site plans are neighborhood driven. The
townhomes on the upper plateau to the west bordering Parkway Dr. create a pleasing and compatible
residential segue into the Sunrise View neighborhood. The price point of the townhomes will
strongly support the Sunrise View home values. The office cluster of The Greenery plat was
designed to be harmonious with the adjacent residents both in architectural design and configuration.
The roof ridges of the office cluster will be held to a maximum height of 22' so the buildings remain
in the residential scale and preserve the long views for Sunrise View homeowners. The plan also
creates a buffer between Sunrise View and the major and mirror arterials, of Four Mile Drive and
2
i:uf�•
Item g. How the plan provides reasonable consideration to the character of the
neighborhood and peculiar suitability of the property for the proposed use.
The peculiar suitability of the property for the proposed uses is expressed in the topography
and configuration of the site.
The office cluster is positioned in the depressed elevations of the central and easterly portions
of the site allowing for the structures to appear reduced in scale and facilitate a design that preserves
the long views of the Sunrise View subdivision.
The townhomes are positioned to the west on the upper plateau adding continuity and
relationship (linkage) to the Sunrise View community.
Item h. Where there are more intensive uses or incompatible uses planned within the
project or on the project boundaries, how will the impacts of those be mitigated?
The greater intensity and less compatible uses exist in the office cluster primarily during
work week hours. The tools to mitigate adversities and nonconformity are intensive landscaping,
40% open space, strict signage and lighting restrictions, harmonious architectural design, and
massing of the structures to residential scale. The developer anticipates R-5 permitted use occupants
inhabiting the complex during typical business workday hours 9am-5pm. The office complex
inhabitants vacate the premises evenings, weekends and holidays. Retail use is prohibited.
Item i. How the development plan will further the goals, policies, and objectives of the
Kalispell Growth Policy.
The Greenery mixed use PUD plan borders the northern edge of Urban Residential
designation. The plan furthers the goals of the growth policy through:
-Annexation and connection of the facilities to public utilities.
-Promoting a mixed -use development, which creates an architecturally harmonious and
compatible environment for both residential and office use.
-Incorporating the pedestrian bike path into the PUD plan
-Creating an eeffctive buffer from major and minor arterials and 'between residential and
commercial uses.
3
THIS DECLARATION, made this day of March, 2004, by Nolan Holdings, LLC,
a Montana Corporation, hereinafter referred to as "DECLARANT',
WHEREAS, Declarant is the Owner of the real property situated in Flathead County,
Montana to be developed and known as The Greenery Professional Park, and
WHEREAS, Declarant is desirous of subjecting said real property to the Covenants,
Conditions and Restrictions hereinafter set forth, each of which is and are for the benefit of said
property and for each Owner thereof, and shall inure to the benefit of said property and for each and
every parcel thereof, and shall apply to and bind the Declarant's and it's successors in interest, and
any Owner thereof,
NOW, THEREFORE, the Declarant hereby declares that the real property described in
Article I is and shall be held, transferred, sold and conveyed subject to the Covenants, Conditions
and Restrictions hereinafter set forth, which shall run with the land and inure to the benefit of each
Owner.
A. Property. The real property which is and shall be held, conveyed, transferred and
sold subject to the Covenants, Conditions and Restrictions hereinafter set forth is situated in the
County of Flathead, State of Montana, and is described as
preliminary draft, please refer- to preliminary plat until we have a description.
No other property, other than that described above, shall be deemed subject to this
Declaration unless and until specifically made subject thereto.
B. Definitions.
"Association" shall mean the association of all owners of the property
described herein above and it's/their successors and assigns in its/their
capacity to oversee, administer and enforce these Covenants, Conditions and
Restrictions. The Association may also be referred to herein as "The
Greenery Professional Park Owners Association, Inc", which shall be formed
by the Declarant as a Montana not for profit Corporation.
2. "Common properties" or "common area" shall mean those areas of land set
forth on the Map or plat of The Greenery Professional Park recorded in the
records of Flathead County, Montana, other than the individual Unit
1
ownership footprints set forth thereupon. Said property shall be conveyed
and owned by the Association.
3. "D eclarant" shall mean Nolan Holdings, LLC, a Montana Limited Liability
Company, its successors and assigns.
4. "Unit" shall mean any building, or portion of a building including attached
decks, driveways, and walkways, situated upon the Properties designed and
intended for the use and occupancy. Units shall not be deemed "common
properties" or "common areas".
S. "Member" shall mean an Owner of a Unit which is subject to assessment
hereunder, in the context of an Owner's membership in the "Association.
6. "Owner" shall mean the record owner of a fee simple title to any Unit which
is part of the property and shall also include a contract buyer.
7. "Property" shall mean the real property described in Article 1, paragraph A
hereinabove, which may also be referred to as The Greenery Professional
Park.
ARTICLE 11
USE OF THE COMMON AREA
A. Common Area. Any Common Area set forth in the map or plat of The Greenery
Professional Park filed with the Clerk and Recorder of Flathead County, Montana, or as described
in the Declaration of Unit Ownership of The Greenery Professional Park shall be owned by the
Association.
B. Owner's Easements of Enjoyment and Property Rights. Every Owner shall have a
right and easement of enjoyment of the common area and said right shall be appurtenant to and shall
pass along with title every Unit subject to the following provisions:
Suspension of Voting Rights. The Association retains the right to suspend
any Owner's voting and use rights for any period during which any
assessment against a Unit remains unpaid, and for a period not to exceed
sixty (60) days for any infraction of its published rules and regulations;
2. Dedication. The Association retains the right to dedicate or transfer all or
any part of the common area to any public agency, authority, or utility for
such purposes and subject to such conditions as may be agreed to by the
Members. No such dedications or transfer shall be effective absent the
unanimous written consent of all Unit owners to such dedication or transfer.
2
3. Fees. The Association retains the right to charge reasonable admission and
other fees for the use, care, maintenance and improvements of the common
area and for furnishings or providing services and facilities to the property
and the Owners hereof.
4. Liens. The Association retains the right to place liens on the Title to any Unit
whose Owner(s) fail to pay any fee.
C. Delegation of Use. Any Owner may delegate, in accordance with this Declaration,
the Articles of Incorporation and the By -Laws of the Association his or her rights of enjoyment to
the common area facilities to their guests, tenants, or contract purchasers.
D. Owner's Easement for Ingress and Egress. Each Owner is hereby granted an
easement, which shall run with the land, across the common area as necessary for ingress and egress
and the maintenance of utilities to and from his or her Unit.
E. Encroachment and Overhang Easements. Each Unit and the common area shall be
subject to an easement for overhangs and minor encroachments by walls, structures and fences upon
adjacent Units as constructed by the original builder or as reconstructed or repaired in accordance
with the original plans and specifications, such easement shall be in favor of the Association.
..
•
A. Membership. The Association shall have as Members the Owners of each of the
Units. Membership shall be appurtenant to and shall not be separated from ownership of any Unit.
Members shall participate in a manner prescribed by this Declaration and the Articles of
Incorporation and By -Laws of the Association, and the Declaration of Unit Ownership of The
Greenery Professional Park and subsequent resolutions of the Association's Board of Directors. The
Association's purpose is to control, maintain and improve the common area and exteriors of the
Units, and to provide services and facilities for those purposes to the Owners as it may determine
are necessary, from time to time.
B. Amendment. The provisions of this Article may be amended at any time by an
instrument signed by the Owners of not less than seventy-five percent (75%) of the Property. Any
such amendment must be recorded with the Clerk and Recorder of Flathead County, Montana, and
must be approved in writing by the Flathead County Commissioners.
A. Allocation of Voting JUghts. Each Owner shall be entitled to one vote for each Unit
that he or she owns. When more than one person holds an interest in any unit, all such persons
shall be members. The vote for such unit shall be exercised as those members may determine, but
in no event shall more than one vote be cast with respect to any unit.
ARTICLE V
COVENANT FOR -MAINTENANCE ASSESSMENTS
A. Creation of the Lien and Personal Obligation for Assessments. The Declarant, for
each Unit owned within the Property, hereby covenants, and each subsequent Owner of any Unit,
as evidenced by recordation of a deed thereto, whether or not it shall be so expressed in such deed,
is deemed to covenant and agree to pay to the Association:
annual assessments or charges,
2. special assessments for capital improvements, as provided in paragraph E
hereof,
3. amounts sufficient to indemnify and hold the Association harmless from all
obligations undertaken or incurred by the Association at or on account of an
individual Owner's special request and to repay the Association for all
expenditures on account thereof, and
4. amounts sufficient to reimburse the Association for the cost of performing
any obligation of an Owner which he or she has failed to timely pay or
perform. The aforesaid obligation, together with interest, court costs,
reasonable attorney's fees and all other collection expenses, shall be a charge
and a continuing lien upon the Unit against which each such obligation is
paid, or with reference to which each such charge is incurred. Each
assessment or charge, together with interest, costs, and reasonable attorney's
fees, shall also be the personal obligation of the person who was the Owner
of such Unit at the time when the assessment fell due or charge was incurred.
5. Assessments made by the Association for taxes and for the maintenance and
improvement of the common areas shall be a lien against the Units, and may
be enforced by judicial process, including the right to recover all costs of
collection and reasonable attorneys fees.
B. Purpose of Assessments. The assessments levied by the Association shall be used
to promote the recreation, health, safety and welfare of the residents in the Property and for the
improvement and maintenance of the common area, and of the buildings and open spaces situated
upon the Property.
C. Annual Assessments. The annual assessments shall be determined at the sole
4
discretion of the Board of Directors of the Association.
D. Apportionment of Assessments. All assessments shall be apportioned as follows:
From time to time, but not less frequently than semi-annually, the Directors of the Association shall
approve total projected and experienced expenditures for the Common Area. Upon the Directors
approval, each Owners share of the assessment shall be determined by multiplying the total
expenditures by a fraction, the numerator of which shall be the number of Units owned by each
Owner, and the denominator of which shall be the total approved expenses. Such assessments shall
include an adequate reserve fund for taxes, maintenance, repairs and replacement of those elements
of the common property that must be replaced on a periodic basis, in order that such costs may be
collected in regular installments rather than by special assessment.
E. Special Assessments for Capital Improvements. In addition to the annual assessments
authorized above, the association may levy, in any assessment year, a special assessment applicable
to that year only for the purpose of defraying, in whole or in part, the cost of any construction,
reconstruction, repair or replacement of a capital improvement upon the common area, including
fixtures and personal property related thereto, provided that any such assessment shall have the
consent of three -fourths (3/4) of the votes of Members who are voting in person at a meeting duly
called for this purpose.
F. Notice and Quorum for Any Action Authorized Under Paragraph E. Written notice
of any meeting called for the purpose of taking any action authorized under paragraph E shall be sent
to all Members not less that ten (10) days nor more that sixty (60) days in advance of the meeting.
At such meeting called, the presence of Members, or their proxies, entitled to cast fifty percent (50%)
of all votes of the membership shall constitute a quorum.
G. Rate of Assessment. Both annual and special assessments must be fixed at a uniform
rate for all Units. This provision shall not preclude the Association from making a separate or
additional charge to an Owner on account of special services or benefits rendered, conferred or
obtained.
H. Date of Commencement of Annual Assessments: Dues. The annual assessments
provided for herein shall commence as to all Units on the first day of the month following the
construction of the Unit. This first annual assessment shall be adjusted according to the number of
months remaining in the calendar year. The Board of Directors shall fix the amount of the annual
assessment against each Unit at least thirty (30) days in advance of each annual assessment period.
Written notice of the annual assessment and of any special charges shall be sent to every Owner
subject thereto. The due dates shall be established by the Board of Directors. The Association shall,
upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the
Association setting forth when the assessments and charges on a specified Unit have been paid.
I. Effect of Nonpayment of Assessments: Remedies of the Association. Any assessment
or charge not paid within thirty (30) days after the due date shall bear interest from the due date at
E
the rate of fifteen percent (15%) per annum. The association may bring an action at law against the
Owner personally obligated to pay the same, or foreclose the lien against the property. No Owner
may waive or otherwise escape liability for the assessments or charges provided for herein by non-
use of the common area or abandonment of his Unit. Sale or transfer of any Unit shall not affect the
lien for assessments or charges.
ARTICLE VI
EXTERIOR MAINTENANCE
A. By Association. In addition to maintenance upon the common area, the Association
will provide exterior maintenance for each Unit which is subject to assessment hereunder as follows:
paint, repair, replace and care for roofs, gutters, down spouts, exterior building surfaces and other
such exterior improvements.
B. Necessitated by Owner. In the event that the need for maintenance or repair is caused
through the willful or negligent act of the Owner, his guests, and/or invitees, the cost of such
maintenance or repairs shall become an additionally assessed against that Owner's unit(s).
C. By Owner. Except as provided in paragraph A of this Article, all maintenance items
shall be the responsibility of each unit Owner; provided however, that if a unit Owner shall fail to
maintain or make the repairs or replacement which are the responsibility of such unit Owner, then,
upon vote of a majority of the Board of Directors, and after not less than thirty (30) days notice to
the unit Owner, the Association shall have the right (but not the obligation) to enter upon or into the
Unit and provide such maintenance or make such repairs or replacements and the cost thereof shall
be added to the assessments chargeable to such unit Owner and shall be payable to the Association
by the Owner of said Unit.
D. Access at Reasonable Hours. For the purpose of performing the maintenance
authorized by this Article, the Association's agents or employees shall have the right after reasonable
notice to the unit Owner to enter upon a Unit or upon any portion of the common areas, at
reasonable hours, and without notice at any time in the event of an emergency.
A. Duties and rowers. in addition to the duties and powers enumerated in its Articles
of Incorporation and By -Laws, or elsewhere provided for herein, and without limiting the generality
thereof the Association shall:
1. Common areas. Maintain and otherwise manage all of the common area and
all facilities, improvements and landscaping thereon, and all property that
may be acquired by the Association.
0
2. Furnishings and Equipment. Obtain and maintain for the use of the common
area such furnishings and equipment as the Board of Directors shall deem
necessary or proper.
3. Exterior Maintenance May maintain the exterior of the Units in the manner
and subject to the limitations set forth in Article VI.
4. Utilities: Refuse Collection. Have the authority to obtain all utility services
for the use of the Owners including but not limited to, water, gas, sewer,
electricity, and refuse collection; and, to the extent not separately charged or
metered, for the individual units upon the Owner's request and promise to
pay therefor.
5. Legal and Accounting Services. Have the authority to obtain legal and
accounting services necessary or proper in the operation of the project or the
enforcement of these Covenants, Conditions and Restrictions.
6. Easements. Grant easements where necessary for utilities and sewer facilities
over the common areas to server the common areas and the Units.
7. Employ. Have the authority to employ a manager and/or other persons and
to contract with independent contractors or managing agents to perform all
or any part of the duties and responsibilities of the Association.
S. Contingency Fund. Have the power to establish and maintain a working
capital and contingency fund in an amount to be determined by the Board of
Directors of the Association. Said fund shall be used by the Association as
the Directors shall deem fit to carry out the objectives and purposes of the
Association, and shall be added to and made a part of the regular assessments
provided for in paragraphs A, B, C, and E of Article V hereof.
9. Purchase Insurance. Have the power to purchase insurance for either or both
the common areas and all or any part of the Units for such risks, and from
such companies, and in such amounts as the Board of Directors of the
Association shall determine and to assess the premium costs thereof in any
manner that the Board of Directors of the Association shall deem to be
appropriate. Premium costs for risks associated with the common area shall
be -cart of the general assessments.
B. Liability and Other Insurance. Public liability insurance and common area property
damage insurance shall be purchased by the Board or acquired by assignment from Declarant, as
promptly as possible following its election, and shall be maintained in force at all times, the premium
thereon to be paid out of the Association's funds. The insurance shall be carried with reputable
7
companies authorized to do business in Montana. The policy shall name the Association, its
directors, officers, employees and agents (in the scope of their employment), as insured. The
Insurance policy(ies) shall insure against, but may not be limited to, injury or damage occurring in
the common area.
1. Other Insurance. The Board of Directors of the Association may purchase
additional insurance as the Board may determine is advisable including, but
not limited to, officers and directors liability, errors and omissions,
workman's compensation insurance, demolition insurance to remove
improvements that are not rebuilt, fidelity bonds, and insurance on
Association -owned personal property. All premiums therefore shall be paid
out of the Association's funds.
2. Owner's Additional Insurance. An Owner can carry such personal liability
and property damage insurance respecting his individual Unit as he may
desire; however, any such policy shall include a waiver of subrogation clause
in favor of the Association and all other Owners.
C. Other Duties and Powers. The Association and its Board of Directors acting in its
behalf shall obtain, provide and pay for any other materials, supplies, furniture, labor, services,
maintenance, repairs, structural alterations, insurance, or pay any taxes or assessments which the
Board is required to secure or pay for pursuant to the terms of these Restrictions or by law or which
in its opinion shall be necessary or proper for the operation of the project or for the enforcement of
these Restrictions; provided that if any such materials, supplies, furniture, labor, services,
maintenance, repairs, structural alterations, insurance, taxes or assessments are specially provided
for particular Units. The Association may likewise pay any amount necessary to discharge any lien
or encumbrance levied against the entire Property or any part thereof which may, in the opinion of
the Board, constitute a lien against the common areas, rather than merely against the interests therein
of a particular Owner, provided that where one or more Owners are responsible for the existence of
such lien, they shall be jointly and severally liable for the cost of discharging it, and any costs
incurred by the Board by reason of said lien or liens, shall be specially assessed to said owners.
ARTICLE VIII
UTILITIES
A. Rights and Duties of Owners. The rights and duties of the Owners with respect to
sanitary sewer, water, electricity, gas and telephone lines and facilities shall be governed by the
following:
1. Easement. Wherever sanitary sewer or water connections or electricity, gas,
telephone or other similar lines or pipes are installed upon the Property,
which connections, lines, or pipes, or any portion thereof, lie in or under
Units owned by other than an Owner of the Unit served by said connections;
8
lines or pipes, the Owners of the Unit served shall have the right, and are
hereby granted an easement to the extent necessary therefor, at reasonable
hours, to enter upon the Unit within the property in or upon which said
connections, lines or pipes, or any portion thereof, lie, in order to repair,
replace and generally maintain said connections, lines and pipes, at the sole
expense of the Owner of the unit served.
2. Common Connections Lines or Pipes. Wherever sanitary sewer or water
connections, or electricity, gas or telephone lines or pipes, are installed within
the Property, which connections serve more than one Unit, the Owner of each
Unit served by said connections, lines and pipes, shall be entitled to the full
use and enjoyment of such portions of said connections, lines and pipes, as
serve a Unit.
3. Resolution of Dispute In the event of a dispute between unit Owners with
respect to the repair or rebuilding of said connections, lines or pipes, or with
respect to the sharing of the cost therein, then, upon written request of one
of such Owners, addressed to the Association, the matter shall be submitted
to the Board of Directors who shall decide the dispute, and the decision of the
Board shall be final and conclusive.
B. Declarant's Easement. Easements over the Property for the installation and
maintenance of electric, telephone, water, gas and sanitary sewer lines, pipes and facilities, and for
drainage facilities, as shown on the recorded plat of the Property and as the Declarant, in it's sole
discretion may hereafter determine may be required or needed to service the Property, or any Units,
are hereby reserved by Declarant, together with the right to grant and transfer the same.
ARTICLE IX
ARCHITECTURAL CONTROL
A. Architectural Approval. No building, fence, wall or other structure shall be
commenced, erected or maintained upon the Property, nor shall an exterior addition to or change or
alteration therein be made until the plans and specifications showing the nature, kind, color, shape,
height, materials, location and other material attributes of the same shall have been submitted to, and
approved in writing as to harmony of external design and location in relation to surrounding
structures and topography by the Architectural Review Committee (hereinafter the ARC), established
pursuant to the provisions of paragraph 2 of this Article. In the event said Board fails to approve the
plans within thirty days after said plans and specifications have been submitted to it, approval will
not be required and this Article will be deemed to have been fully complied with.
B. Appointment of Architectural Review Committee. Declarant shall retain the right to
appoint and remove the initial members as well as any replacement members, necessary due to the
resignation, death or removal of a member of the ARC. The ARC shall consist of not less than three
0
members who shall remain in office until Declarant relinquishes the right to appoint the members
of the ARC to the Association or until such time as less than 75% of the Property is owned by
Owners other than the Declarant, whichever shall first occur. From and after such event or time
the ARC shall be composed of the Board of Directors of the Association or by three Members of the
Association appointed by said Board.
ARTICLE X
USE RESTRICTIONS
In addition to all other covenants contained herein, the use of each Unit herein is restricted
as follows:
A. Restricted Use. The property described herein shall be used for commercial/office
uses only.
B. Building Size. Each building or other structure shall be constructed, erected and
maintained in strict accordance with plans and specifications, which must be approved by the ARC
prior to the commencement of any construction unless otherwise agreed to in writing by said ARC.
C. Utilities. All utilities including but not limited to power, electric, and telephone
shall be underground.
D. Suns. Graphics and Lighting. Signs, graphics and lighting within The Greenery
Professional Park may express the individual Owner' identity or that of his/her lessee, but must
coincidentally and primarily express the themes and identity of The Greenery Professional Park
Owners Association, Inc., reinforcing that character with the intent to accomplish the following:
1. Be appropriate to the type of activity to which it pertains, recognizing that
careful use of color, lighting and materials in sign fabrication can contribute
to quick and easy communication of information spelled out by letters and
symbols.
2. Be compatible with the visual character of the area surrounding it in order to
achieve aesthetically pleasing graphics and more effective graphics whose
message can readily be perceived and accepted.
�. Be legible in the circumstances in which they are seen recognizing that
graphic effectiveness is a function of dynamic visual acuity -how people see
when they are in motion, which depends upon how fast they are moving and
how drunk they are.
4. To accomplish the above all signs, graphics and lighting shall conform to the
following requirements, as well as being first approved by the ARC prior to
10
display:
a. Temporary signs and banners, including window signs, are permitted
only with the approval of the ARC, which shall specify the size,
location and duration of display of each sign. No Unit shall be
permitted to display temporary signs for more than thirty days of any
calendar year. No temporary sign shall exceed four square feet in
size.
b. All signs shall be submitted to and approved in writing by the ARC
prior to installation.
C. Signs graphics and lighting may be permitted on the face of a
building upon approval of the ARC.
d. Wall signs and graphics may be attached flat pinned away from a wall
and shall not project from the wall more than four inches.
e. Wall signs and graphics shall be limited to twenty-four inches in
height and no more than six items of information in length per line
and all information displayed shall not exceed eight lineal feet.
f. Back lit signs and graphics shall be permitted. Signs and graphics
may be front illuminated upon approval of the ARC. Bent neon tube
illumination may be permitted upon by the ARC.
g. Signs, Graphics, and Lighting shall only be permitted upon the
"signable wall area" defined herein.
5. The following signs, graphics, and lighting are prohibited:
a. Permanent banners and other wind or mechanically propelled
displays,
b. internally illuminated signs and graphics,
C. flashing or moving signs, and
d. roof mounted signs.
6. No other signs, graphics, lighting or advertising devices of any nature except
those authorized by the ARC shall be erected or maintained on any part of the
property. The Association, however, may erect signs or notices for
11
identification purposes in accordance with applicable state and municipal
laws or codes.
7. A Member, prior to requesting approval of any sign, graphic, or lighting,
shall determine the proposed sign, graphic, or lighting area by choosing one
such area of the building facade, and by then calculating the number of square
feet which are enclosed by an imaginary rectangle or square drawn around
this area. This proposed signable wall area and a depiction of the sign,
graphic, or lighting shall then be submitted to the ARC. In calculating the
signable wall area of a building, which may be used for wall graphics, the
following provisions shall apply:
a. "Signable wall area" of the building means an area of the facade of
the building up to the roofline, which is free of windows, doors or
major architectural detail.
b. if the graphic is enclosed by a box or outline, the total area of the
graphic, including the background, is counted as part of the signable
area.
C. if the graphic consists of individual letters, only the area of the letters
is counted as part of the signable area.
E. Landscaping. All surface areas disturbed by construction shall be returned promptly
to their natural condition and replanted in native grasses; but the ARC must approve construction
of ornamental gardens, lawn and exterior living areas.
F. Nuisance. No obnoxious or offensive activity shall be carried on nor shall anything
be done or permitted which shall constitute a public nuisance.
G. Vehicles and Recreational Equipment. No trailer, camper, boat or similar equipment
shall be permitted to remain upon or within the property.
H. Animals. No animals, livestock, or poultry of any kind shall be raised, bred, or kept
on or within any Unit, with the exception of service dogs to assist individuals visually or otherwise
impaired. Notwithstanding the foregoing, no animal may be kept on the Property which results in
any annoyance to other unit Owners or tenants in the vicinity.
I. Trash. All rubbish, trash and garbage shall be regularly removed from the Property,
and shall not be allowed to accumulate thereon.
J. Antennas. No alteration to or modification of any radio and television antenna
system, as developed by Leclarant, shall be permitted and no Owner may be permitted to construct
12
or use and operate his own external radio or television antenna, without the written approval of the
Architectural Committee.
K. Common Mail Receptacles. A common facility shall be placed by the Declarant for
use by the United States Postal Service for mail pick up and delivery. The facility so constructed
shall be a common element.
L. Parking. No parking shall be allowed in the common area except in parking areas
designated by the Declarant.
.. .
A. General Rules to Law to Apples Each wall which is built as a part of the original
construction of a Unit upon the Property and placed on the dividing line between Units shall
constitute a party wall, and, to the extent not inconsistent with the provisions of this Article, the
general rules of law regarding party walls and liability for property damage due to negligence or
willful acts or omissions shall apply thereto.
B. Sharing of Repair and Maintenance. The cost of reasonable repair and maintenance
of a party wall shall be shared by the Owners of Units which are separated by said party wall.
Declarant reserves and each owner grants a reciprocal easement for access to the premises of the
other for the purpose of performing repair or maintenance work to the party wall and any utility
services contained therein.
C. Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by fire
or other casualty, any Owner who has use of the wall may restore it, and if the other Owners
thereafter make use of the wail, they shall contribute to the cost of restoration thereof in proportion
to such use without prejudice, however, to the right of any such Owners to call for a larger
contribution from the others under any rule of law regarding liability for negligent or willful acts or
omissions.
D. Protection from weather. Notwithstanding any other provision of this Article, any
Owner who by his negligent or willful act causes the party wall to be exposed to the elements shall
bear the whole cost of furnishing the necessary protection against such elements.
E. Right to Contribution Runs with Land. The right of any Owner to contribution from
any other Owner under this Article shall be appurtenant to the land and shall pass to such Owner's
successors in title.
13
A. Enforcement. The Association, in the first instance, or any Owner, should the
Association fail to act within a reasonable time, shall have the right to enforce, by any proceeding
at law or in equity, all limitations, restrictions, liens and charges now or hereafter imposed by the
provisions of this Declaration, or any amendment hereto. Failure by the Association or by any
Owner to enforce any limitation, condition, reservation, lien, charge, covenant or restriction herein
contained shall in no event be deemed a waiver of the right to do so thereafter. Deeds of conveyance
of said property, or any part thereof, and each and all such restrictive covenants shall be valid and
binding upon the grantee. Violations of any one or more of these covenants, conditions, and
restrictions shall not affect the lien of any mortgage or deed of trust now of record or which hereafter
may be placed of record upon said Units or any part thereof.
B. Severability. Invalidation of any one of these covenants, conditions or restrictions,
or any portion thereof, by judgment or court order shall not affect the validity or enforceability of
any other covenant, condition or restriction or any portion thereof, the provisions of which shall
remain in full force and effect.
C. Term. These covenants, conditions and restrictions run with the land and shall be
binding upon all parties and all persons claiming under them, for a period of 20 years from the date
they are recorded, after which time said protective covenants shall be automatically extended for
successive periods of 10 years unless an instrument executed by the owners of 75% of the land
described in Article I, paragraph A has been recorded agreeing to terminate said protective covenants
or change them in whole or in part. Each Unit, regardless of size or of any deeded ownership
interest, shall be entitled to one vote under this Section
D. Amendment. This Declaration may be amended by an instrument signed by the
owners of 75% of the land described in Article I, paragraph A, which instrument has been recorded,
agreeing to such amendment. Each Unit, regardless of size or of any deeded ownership interest, shall
be entitled to one vote under this Section.
E. Construction. This Declaration. shall be liberally construed to effectuate its purposes
of creating a uniform plan and scheme for the development of a commercial office condominium
project and for the maintenance of common facilities and areas. The provisions hereof shall be
construed in a manner which will effectuate the annexation to and merger into the project of
additional land. The Article and paragraph headings have been inserted for convenience only and
shall not be considered or referral to in resolving questions of interpretation or construction.
1. All terms and words used in this Declaration regardless of the gender used
shall be deemed and construed to include any other gender, masculine,
feminine or neuter, as the context or sense of this Declaration or any part
hereof may require.
14
2. Whenever the words and symbol "and/or" are used in this Declaration, it is
intended that this Declaration be interpreted and the sentence phrase or other
part be construed in both its conjunctive and disjunctive sense, phrase or
other part, and as having been written, twice, once with the word "and"
inserted, and once with the word "or" inserted, in the place of said words and
symbol "and/or".
F. Notices. Any notice permitted or required to be delivered as provided herein may be
delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been
delivered 24 hours after a copy of same has been deposited in the United States mail, postage
prepaid, addressed to each person at the address given by such person to the Association for the
purpose of service of such notice or the address of the Unit of such person if no address has been
given. Such address may be changed from time to time by giving notice in writing to the
Association.
G. No Partition. There shall be no judicial partition of the Property or any part hereof,
nor shall Declarant or any Owner or other persons acquiring any interest in the Property, or any part
thereof, seek any such judicial partition, unless and until the happening of the conditions set forth
in Article VII, paragraph C hereof shall occur; provided, however, that if any Unit shall be owned
by two or more co -tenants as tenants -in -common or as joint tenants nothing herein contained shall
be deemed to prevent a judicial partition as between such co -tenants.
IN WITNESS WHEREOF, the Declarant has executed this instrument the day and year first
above written.
Nolan Holdings, L.L.C.
N. Beach, Manai�inz Member
STATE OF MONTANA )
ss.
County of Flathead )
On this day of March, 2004, before me, the undersigned, a Notary Public for the State
of Montana, personally appeared Harold N. Beach, known to me to be the Managing Member of
Nolan Holdings, L.L.C., the Corporation whose name is subscribed to the foregoing instrument and
acknowledged that such Corporation executed the same.
15
IN WITNESS WHEREOF, I have hereunto set my signature and affixed my Notarial Seal
the date first above written.
�e CY-6 z" -, 0 V-1 l �j .. .
Joann L. Kizer
Notary Public for the State of Montana
(SEAL) Residing at Columbia Falls, Montana
1VIy commission expires 6-9-2006
16
THIS DECLARATION, made this 8`h day of March, 2004, by Nolan Holdings L.L.C., a
Montana Limited Liability Company, with a mailing address of 607 Dakota, Whitefish, Montana
59937 (hereinafter referred to as "Declarant")
WITNES SETH:
WHEREAS, Declarant is the owner of the real property situated in Kalispell, Montana, to
be developed and known as The Greenery Townhomes; and
WHEREAS, Declarant is desirous of subjecting said real property to the Covenants,
Conditions and Restrictions hereinafter set forth, each of which is and are for the benefit of said
property and for each owner thereof, and shall insure to the benefit of and pass with said property,
and each and every parcel thereof, and shall apply to and bind the successors in interest, and owner
thereof;
NOW THEREFORE, the Declarant hereby declares that the real property described in Article
I is and shall be held, transferred, and sold and conveyed subject to the Covenants, Conditions and
Restrictions hereinafter set forth.
1. Property. The real property which is and shall be held, conveyed, transferred and
sold subject to the Covenants, Conditions and Restrictions hereinafter set forth is situated in the
County of Flathead, State of Montana, and is described on Exhibit "A" hereto (preliminary draft,
please refer accompanying map until we have a description). which by this reference is
incorporated herein, and which is depicted upon the map or plat of "The Greenery Townhomes" on
file with the Clerk and Recorder of Flathead County.
No other property, other than that described above, shall be deemed subject to this
Declaration unless and until specifically made subject thereto.
2. Definitions.
a. "Association" shall mean "The Greenery Townhomes Owners' Association, its
successors and assigns which shall be formed by the Declarant as a Montana not for
profit corporation.
b. "Common properties or common area" shall mean those areas of land shown on any
recorded subdivision plat of the property and intended to be devised to the common
use and enjoyment of the owners of the property.
C. "Declarant" shall mean Nolan Holdings, L.L.C., of Whitefish, Montana, and its
successors and assigns.
d. "Living unit" shall mean any building, or portion of a building, situated upon the
properties designed and intended for the use and occupancy as a residence by a single
family. All references to a living unit shall be deemed to refer also to the underlying
lot, whether or not developed, and all permanent improvements thereon.
e. "Lot" shall mean any plot of land shown upon any recorded subdivision map of the
property with the exception of the common properties or common area. Every lot
shall be conclusively presumed for all purposes hereunder to include on living unit,
irrespective of the actual status of construction thereon.
f "Member" shall mean Owner of a living unit which is subject to assessment
hereunder, in the context of the Owner's membership in the "Association".
f "Mortgage" shall mean the conveyance or assignment of any lot or living unit to
secure the performance of an obligation and the instrument thereof, and may include
a deed of trust, trust indenture, mortgage, assignment, financing statement or any
other form of security instrument or agreement as now known or hereafter devised
for the purpose of creating a lien to secure an obligation or duty.
Cr. "Mortgagee" shall mean a person or entity to whom a mortgage is made.
h. "Mortgagor" shall mean a person or entity who mortgages his or its property to
another, i.e., the maker of a mortgage.
i. "Owner" shall mean the record owner of a fee simple title to any living unit which
is part of the property and shall also include a contract buyer.
j. "Property" shall mean the real property described in Article I, paragraph 1,
hereinabove.
k. "Townhouse" shall mean any living unit upon the Property.
COMMONARTICLE III
COMMON RIGHTS IN
1. Owner's Easements of Enjoyment. Every owner shall have a right and easement
of enjoyment in and to the common area which shall pass with the title to every lot, subject to the
following provisions:
a. Charges. The right to the Association to charge reasonable admission and other fees
2
for the use of any recreational facility situated upon the common area;
b. Suspension of Voting Rights. The right of the Association to suspend the voting
rights and right to use of the recreational facilities by an owner for any period during
which any assessment against his lot remains unpaid, and for a period not to exceed
sixty days for any infraction of its published rules and regulation, if any;
C. Dedication. The right of the Association to dedicate or transfer all or any part of the
common area to any public agency, authority, or utility for such purposes and subject
to such conditions as may be agreed to by the members. No such dedications or
transfer shall be effective unless an instrument signed by two-thirds of each class of
members agreeing to such dedication or transfer has been recorded.
2. Delegation of use. Any owner may delegate, in accordance with the By -Laws, his
right of enjoyment to the common area facilities to the members of his family, his tenants, or contract
purchasers who reside on the property.
3. Owner's Easement for Ingress and Egress. Each Owner is hereby granted an
easement, which shall run with the land, across the common area as necessary for ingress and egress
to his lot.
ARTICLE 1
ASSOCIATIONp, PROPERTY RIGHT1$
1. Association Membership. The Association to be formed by the Declarant shall have
as members the owners of each townhouse. Membership shall be appurtenant to and shall not be
separated from ownership of any Townhouse. Members shall participate in a manner prescribed by
the Declaration and By -Laws of the Association, and the resolutions of its Board of Directors. The
Association's purpose is to control, maintain and improve the common area and exteriors of the
Townhouses, plus provide services and facilities to the owners as it may determine.
2. Property Rights. Every owner shall have a right and easement of enjoyment of the
common area and said right shall be appurtenant to and shall pass along with title to every
Townhouse subject to the following provisions:
a. The rights of the Association to charge reasonable admission and other fees for the
use, care, maintenance and improvements of the common area and the furnishing or
providing of services and facilities to the property and owners thereof.
b. The rights of the Association to place liens on townhouses whose owners fail to pay
any fee, as limited by Sub Article 3, "Assessment Liens", hereof.
c. In the event the Association fails to maintain the common area as herein provided,
the City Council of Kalispell, Montana shall have the right to perform said
maintenance and charge the owners for any costs thereof and place liens on the
property for failure of the owners to pay said costs.
3. Assessment Liens. Assessments made by the Homeowner's Association for taxes
and for the maintenance and improvement of the common area shall be a lien against the Townhouse
units, and may be enforced by judicial process, including the right to recover all costs of collection
and reasonable attorney's fees, subject to the following exceptions and provisions:
a. Default Notification. The holder of a first mortgage or trust indenture, upon request,
is entitled to written notification from the Homeowner's Association of any default
in the performance of the individual Townhouse unit borrower of any obligation to
the Homeowner's Association which is not cured within sixty days.
b. Holder not Liable for Dues and Charges. Any holder of a first mortgage or trust
indenture who obtains title to a Townhouse unit pursuant to the remedies provided
in the mortgage or trust indenture, or by deed (or assignment) in lieu of foreclosure,
will not be liable for such Townhouse unit's unpaid dues or charges which accrue
prior to the acquisition of title to such unit by the holder of the mortgage or trust
indenture.
C. Homeowners Association - Prohibited Acts. Unless at least seventy-five percent of
the holders of first mortgages and trust indentures (based upon one vote for each
townhouse unit affected) or owners (other than the sponsored developer or builder)
of the individual units in The Greenery Townhomes, have given their prior written
approval, the Homeowner's Association shall not be entitled to:
(1) By act or omission seek to abandon, partition, subdivide, encumber, sell or
transfer the common property owned directly or indirectly by the
Homeowner's Association for the benefit of the units in The Greenery
Townhomes. The granting of easements for public utilities or for other
public purposes consistent with the intended use of such common property
shall not be deemed a transfer within the meaning of this provision.
(2) Change the method of determining the obligations, assessments, due or other
charges which may be levied against a Townhouse unit owner.
(3) By act or omission, change, waive or abandon any scheme of regulation, or
enforcement thereof, pertaining to the architectural design or the exterior
maintenance of units, the maintenance of the common property, streets,
driveways, lawns and landscape plantings.
(4) Fail to maintain fire and extended coverage insurance on any insurable
4
common property on a current replacement cost basis in an amount not less
than 100% of the insurable value (based on current replacement cost).
(5) Use hazard insurance proceeds for losses to any Homeowner's Association
common property for other than the repair, replacement or reconstruction of
such common property.
d. Right to Review Records. The holders of first mortgages or trust indentures shall
have the right to examine the books and records of the Homeowner's Association or
any successor thereto which owns the common property of The Greenery
Townhomes.
e. Payment of Taxes Due. The holders of first mortgages or trust indentures on
Townhouse unites may, jointly or singly, pay taxes or other charges which are in
default, and which may or have become a charge against any common property, and
may pay overdue premiums on hazard insurance policies or secure new hazard
insurance coverage upon the lapse of a policy for such common property, and the
holders of first mortgages or trust indentures making such payments shall be owed
immediate reimbursement therefor from the Homeowner's Association. Upon
request, the Homeowner's Association will execute an agreement in favor of all
holders of first mortgages or trust indentures or units in The Greenery Townhomes,
and deliver the original or a certified copy of such agreement to such holder.
f. Association's Rights re: Mortgage Holders. No action may be taken by the
developer, by the Homeowner's Association, or any successor or entity that would
have the effect of giving the Townhouse unit owners or any other party priority over
any rights of the holders of first mortgages or trust indentures, in the case of a
distribution to Townhouse unit owners of insurance proceeds or condemnation
awards for losses to or a taking of any common property.
g. Method of Assessment. All assessments shall be apportioned equally amongst the
Townhouse units in the estates. Such assessments shall include an adequate reserve
fund for taxes, maintenance, repairs and replacements of those elements of the
common property that must be replaced on a periodic basis, in order that such costs
may be included in regular monthly installments rather than by special assessments.
4. In the event any provision of this Article III appears to be inconsistent with or
contradictory to any other provision of these covenants, Article III shall control.
5. Amendment. The provisions of this Article may be amended at any time by an
instrument signed by not less than seventy-five percent of the owners and approved by the City
Council of Kalispell, Montana.
5
ICLE IV
t ASSOCIATION :'
1. Voting Rights. The Association shall have two classes of voting membership:
Class A. Class A members shall be all owners (with the exception of the Declarant until
conversion of Declarant's Class B Membership) and shall be entitled to one vote for each
living unit owned. When more than one person holds an interest in any living unit, all such
persons shall be members. The vote for such living unit shall be exercised as the owners
thereof among themselves determine, but in no event shall more than one vote be cast with
respect to any living unit.
Class B. The Declarant shall be the Class B member and shall be entitled to three votes for
each lot or living unit owned by Declarant. The Class B membership appurtenant to
ownership of a lot or living unit is nontransferable and shall cease and be converted to Class
A membership when ownership of all living units shall pass from Declarant to any owner
other than the Declarant.
Nothing containing herein shall preclude the Declarant from adding property pursuant to the
provisions of Article XIl, or otherwise pursuant hereto, and all property so added shall be included
in the determination of the existence of such property.
ARTICLE V
COVENANT • MAINTENANCE ASSESSMENTS
1. Creation of the Lien and Personal Obligation of Assessments. The Declarant, for
each living unit owned within the Property, hereby covenants, and each owner of any living unit by
acceptance of a deed therefor, whether or not it shall be so expressed in such deed, is deemed to
covenant and agree to pay to the Association: (1) annual assessments or charges, (2) special
assessments for capital improvements as provided in paragraph 4 hereof, (3) an amount sufficient
to indemnify and hold the Association harmless from all obligations undertaken or incurred by the
Association at or on account of an individual owner's special request and to repay the Association
for all expenditures on account thereof and (4) an amount sufficient to reimburse the Association
for the cost of performing an obligation of an owner hereunder which he has failed to timely pay or
perform. The aforesaid obligations, together with interest, taxable court cost, reasonable attorneys'
fees and all other collection expenses, shall be a charge and a continuing lien upon the living unit
against which each such assessment is made, or with reference to which each such charge is incurred.
Each assessment or charge, together with interest, costs and reasonable attornev's fees, shall also be
the personal obligation of the person who was the owner of such living unit at the time when the
assessment fell due or charge was incurred. The personal obligation for delinquent assessments or
charges shall not pass to his successors in title unless expressly assumed by them.
2. Purpose of Assessments. The assessments levied by the Association shall be used
0
exclusively to promote the recreation, health, safety, and welfare of the residents in the Property and
for the improvement and maintenance of the common area, and of the buildings and open spaces
situated upon the Property.
3. Annual Assessment. Until January 1 of the year immediately following the
conveyance of the first living unit to an owner, the maximum annual assessment shall be $1,000.00
per living unit. From and after January 1 of the year immediately following the conveyance of the
first living unit to an owner, the maximum annual assessment shall be as determined by the Board
of Directors.
4. Special Assessments for Capital Improvements. In addition to the annual
assessments authorized above, the Association may levy, in any assessment year, a special
assessment applicable to that year only for the purpose of defraying, in whole or in part, the cost of
any construction, reconstruction, repair or replacement of a capital improvement upon the common
area, including fixtures and personal property related thereto, provided that any such assessment shall
have the assent of two-thirds of the votes of each class of members who are voting in person or by
proxy at a meeting duly called for this purpose.
5. Notice and Quorum for Any Action Authorized Under Paragraph 4. Written
notice of any meeting called for the purpose of taking any action authorized under paragraph 4 shall
be sent to all members not less than twenty days nor more than sixty days in advance of the meeting.
At such meeting called, the presence of members or their proxies entitled to cast fifty percent of all
votes of each class of membership shall constitute a quorum.
6. hate of Assessment. Both annual and special assessments must be fixed at a uniform
rate for all living unites and may be collected on monthly basis. This provision shall not preclude
the Association from making a separate or additional charge to an owner for and on account of
special services or benefits rendered, conferred or obtained.
7. Bate of Commencement of Annual Assessments: Dues.' The annual assessments
provided for herein shall commence as to all living units on the first day of the month following the
occupation of the unit by a purchaser or tenant; provided however, that any unit which remains
unoccupied for a period of six months after it is completed shalt be subject to assessment which shall
be paid by the owner, including the Declarant if it is still the owner. The first annual assessment
shall be adjusted according to the number of months remaining in the calendar year. The Board of
Directors shall fix the amount of the annual assessment against each living unit at least thirty days
in advance of each annual assessment period. Written notice of the annual assessment and of any
special charges shall be sent to every owner subject thereto. The due dates shall be established by
the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish
a certificate signed by an officer of the Association setting froth when the assessments and charges
on a specific living unit have been paid.
S. Effect of Nonpayment of Assessments: Remedies of the Association. Any
V1
assessment or charge not paid within thirty days after the due date shall bear interest from the due
date at the rate of thirteen percent per annum. The Association may bring an action at law against
the owner personally obligated to pay the same, or foreclose the lien against the property. No owner
may waive or otherwise escape liability for the assessments or charges provided for herein by non-
use of the common area or abandonment of his living unit.
9. Subordination of the Lien to Mortgages and Deeds of Trust. The lien of the
assessments and charges provided for herein shall be subordinate to the lien of any first mortgage
or first deed of trust. Sale or transfer of any living unit pursuant to foreclosure of an institutional first
mortgage or first deed of trust (including without limitation the exercise by the trustee of a power
of sale thereunder), or any proceeding or deed in lieu thereof, shall extinguish the lien of such sale
or transfer. No sale or transfer shall relieve such living unit from liability for any assessments or
charges thereafter becoming due or from the lien thereof.
10. Exempt Property. All Property dedicated to, and accepted by, a local public
authority and all Property owned by a charitable or nonprofit organization exempt from taxation by
the laws of the State of Montana shall be exempt from the assessments created herein, provided
however, no land or improvements devoted to dwelling use shall be exempt from said assessments.
1. By Association. In addition to maintenance upon the common area, the Association
shall provide exterior maintenance upon each lot which is subject to assessment hereunder, as
follows: paint, repair, replace and care for party walls between living units, roofs, gutters,
downspouts, exterior building surfaces and other such exterior improvements. Such exterior
maintenance shall not include improvements built or placed by an owner within the patio or yard
space or repairs or replacements caused by any of the perils covered by a standard for fire insurance
policy with extended coverage endorsement thereon, or caused by flood, earthquake or other Acts
of God, including, but not limited to glass surfaces, air conditioning units, trees, shrubs, grass, walks,
driveways, parking areas, or landscaping.
2. Necessitated by Owner. In the event that the need for maintenance or repair is
caused through the willful or negligent act of the owner, his family, pet, guest, or invitees, the cost
of such maintenance or repairs shall be added to and become a part of the assessment against said
owner's living unit.
3. By Owner. Except as provided in paragraph 1 of this Article, all maintenance items
shall be the responsibility of each living unit owner; provided however, that if a living unit owner
shall fail to maintain or make the repairs or replacement which are the responsibility of such living
unit owner, then, upon vote of a majority of the Board of Directors, and after not less than thirty days
notice to the living unit owner, the Association shall have the right (but not the obligation) to enter
upon or into the lot or living unit and provide such maintenance or make such repairs or
8
replacements, and the cost thereof shall be added to the assessments chargeable to such living owner
and shall be payable to the Association by the said living unit owner.
4. Access at Reasonable Hours. For the purpose of performing the maintenance
authorized by this Article, the Association's agents or employees shall have the right after reasonable
notice to the living unit owner, to enter upon a lot or living unit or upon any portion of the common
areas, at reasonable hours, and without notice at any time in the event of an emergency.
ARTICLE VII
DUTIES AND POWERS OF THE OWNER'S ASSOCIATION
1. Duties and Powers. In addition to the duties and powers enumerated in its Articles
of Incorporation and By -Laws, or elsewhere provided for herein, and without limiting the generality
thereof, the Association shall:
a. Common Areas. Maintain and otherwise manage all of the common areas and all
facilities, improvements and landscaping thereon, and all property that may be
acquired by the Association.
b. Furnishings and Equipment. Obtain and maintain for the common areas, and it's use
and recreation, such furnishings and equipment as it shall deem to be necessary or
proper.
Exterior Maintenance. Maintain the exterior of the living units in the manner and
subject to the limitations set forth in Article VI.
d. Utilities Refuse Collection. Have the authority to obtain for the benefit of all the
owners, all utility services, including but not limited to, water, gas, sewer, electricity
and refuse collection; and, to the extent not separately charged or metered, for the
individual living units upon the owner's request and promise to pay therefore.
C. Legal and Accounting Services. Have the authority to obtain legal and accounting
services as it shall deem to be necessary or proper in the operation of the project or
the enforcement of these Restrictions.
f. Easements. Grant easements where necessary for utilities and sewer facilities over
the common areas to serve the common areas and the living units.
or, Employ. Have the authority to employ a manager or other persons and to contract
with independent contractors or managing agents to perform all or any part of the
duties and responsibilities of the Association.
h. Contingency Fund. Have the power to establish and maintain a worl6ng capital and
7
contingency fund in an amount to be determined by the Board of Directors of the
Association. Said fund shall be used by the Association as the Directors shall deem
fit to carry out the objectives and purposes of the Association, and shall be added to
and made a part of the regular assessments provided for in paragraph 3 of Article V
hereof.
i. Purchase Insurance. Have the power to purchase insurance for either or both the
common areas and all or any part of the living units for such risks, and such
companies, and in such amounts as the Board of Directors of the Association shall
determine and to assess the premium costs thereof in any manner that the Board of
Directors of the Association shall deem to be equitable. Premium costs for risks
associated with the common area shall be part of the uniform assessment provided
in Article V and risks associated with individual dwelling units shall be special
assessments attaching only to such dwelling units.
2. Liability Insurance. Public liability and common area property damage insurance
shall be purchased by the Board, or acquired by assignment from Declarant, as promptly as possible
following its election, and shall be maintained in force at all times. The premium thereon to be paid
out of the Association's funds. The insurance shall be carried in reputable companies authorized to
do business in Montana. The minimum amounts of coverage shall be a combined limit for personal
injury and property damage of $1,000,000.00 per occurrence, and $2,000,000.00 in the aggregate.
The policy shall insure against, but may not be limited to, injury or damage occurring in the common
area.
a. Fire Insurance - Master Policy for Common Area. A master or blanket fire insurance
policy shall also be purchased or acquired by the Board as promptly as possible
following its election, and shall hereafter be maintained in force at all times, the
premium thereon to be paid out of the Association's funds. Said insurance shall be
carried with reputable companies qualified to do business in the State of Montana,
and shall insure against loss from fire and other hazards therein covered, for the full
insurable value of all of the permanent improvements upon the common area. Said
policy may contain extended coverage and replacement costs endorsements,
coverage, special form endorsement, stipulated amount clause, or clauses to permit
cash settlement covering full value of the improvements in the event of partial
destruction. The policy shall be in such amounts as shall be determined from time
to time by the Board, but for no less than $1,000,000.00 per occurrence and for
$2,000,000.00 in the aggregate,. The policy shall name all owners and mortgagees
of the subject property, or any of it, as insured, as their respective interest may
appear, and shall contain a loss payable endorsement in favor of the trustee
hereinafter described.
b. Other Insurance. The Board of Directors of the Association may purchase additional
insurance as the Board may determine to be advisable including, but not limited to,
WN
workmans compensation insurance, demolition insurance to remove improvements
that are not rebuilt, fidelity bonds and insurance on Association owned personal
property. All premiums therefor shall be paid out of the Association's funds.
c. Owner's Additional Insurance. An owner shall carry such personal liability and
property damage insurance respecting his individual living unit for its full
replacement cost, as well as general liability in the amount of at least $1,000,000.00
per occurrence and $2,000,000.00 in the aggregate; however, any such policy shall
include a waiver of subrogation clause in favor of -or -against? the Association and
all other owners.
e. Certification. The Association shall annually provide a certificate of insurance to all
owners and all owners are required to similarly provide certification of insurance to
the Association annually.
d. Mortgagee's Rights. With respect to insurance coverage under paragraph (b) hereof,
any mortgagee of record shall have the option to apply insurance proceeds payable
to it in reduction of the obligation secured by it's mortgage.
3. Damage and Destruction; Reconstruction. If any permanent improvement
comprising a part of the Property, whether owned by an individual owner or by the Association, shall
be damaged by fire or other casualty covered by insurance, the proceeds of all such insurance
policies shall be paid to the Association to be applied as hereinafter provided. If the damage or
destruction shall be to one or more living units, the board of Directors of the Association shall enter
into a contract for the repair or reconstruction of the damaged improvements, upon such terms as the
Board feels is in the best interest of the individual owner as well as the Association. In the event that
the proceeds from the insurance policies payable as a result of the loss to an individual living unit
shall be insufficient for the repair or reconstruction of such living unit, the deficiency shall be
promptly paid by the owner of such living unit, failing which, such amount shall become a special
charge and assessment against such living unit pursuant to the provision of Article V hereof. In the
event of damage or destruction of any improvements upon the common areas, the Board of Directors
shall contract for repair or reconstruction of such improvements and if the proceeds of any insurance
policies payable as a result of such loss are insufficient for such repair or reconstruction, the
deficiency shall be the subject of a special assessment which shall be approved by a vote of the
owners as provided in Article V hereof. The insurance proceeds shall be paid to the contractor or
contractors designated by the Board. All repairs or reconstruction shall be made in accordance with
original plans and specifications therefore, or according to such revised plans and specifications as
may be approved by the Board of Directors of the Association.
in the event that improvements in and upon the common areas shall not be rebuilt because
the cost of rebuilding shall exceed the available insurance proceeds, and the members shall fail to
approve a special assessment to cover the deficiency, the Board of Directors shall then cause any
remaining portion of such improvement to be removed and the area cleared and landscaped in the
most efficient and aesthetically pleasing manner possible. In the event that more than one individual
living unit shall be substantially destroyed by fire or other casualty, and in the further event that at
least sixty-six and two-thirds percent of both Classes of Membership provided herein shall approve,
the damaged and destroyed improvements shall not be rebuilt but rather the remaining portions
thereof shall be removed, and the land cleared, and the lots occupied by such removed improvements
shall, with the consent of the owners thereof, be removed from the Property subject to this
Declaration.
If the Board of Directors of the Association shall fail to proceed in good faith with the repair
or reconstruction of any damaged or destroyed improvement whether upon an individually owned
lot or upon common area, and in any event if reconstruction of an individual dwelling unit is not
commenced within sixty days after the casualty occurs, the owner of such damaged improvement
may proceed to negotiate and execute a contract for such repair or reconstruction and the Association
who shall receive any insurance proceeds attributable to such loss, shall pay such proceeds, to the
extent required, to the contractor or contractors selected by such individual owner. In the event that
the Board of Directors shall fail to proceed in good faith to repair or rebuild damaged or destroyed
improvements upon the common areas, any individual owner may call a meeting of the Association
upon thirty days notice in writing to all owners and such Association may act, through its
membership, to proceed upon a simple majority vote of the members present and voting to enter into
contracts for the repair and reconstruction of any damaged improvements. The excess of any
proceeds, not required to repair or restore an improvement shall be paid by the Association to the
owner or the institution who shall have paid the premium for such insurance coverage.
4. Other Duties and Powers. The Association and its Board of Directors acting in its
behalf shall obtain, provide and pay for any other materials, supplies, furniture, labor, services,
maintenance, repairs, structural alterations, insurance, or pay any taxes or assessments which the
Board is required to secure or pay for pursuant to the terms of these Restrictions; provided that if any
such materials, supplies, furniture, labor, services, maintenance, repairs, structural alterations,
insurance, taxes or assessments are specially provided for particular living units, the cost thereof
shall be specially assessed to the owners of such living units. The Association may likewise pay any
amount necessary to discharge any lien or encumbrance levied against the entire Property or any part
thereof which may, in the opinion of the Board, constitute a lien against the common areas, rather
than merely against the interests therein of a particular owner, provided that where one or more
owners are responsible for the existence of such lien, they shall be jointly and severally liable for the
cost of discharging it, and any costs incurred by the Board by reason of said lien or liens shall be
specially assessed to said owners.
UUMMAIM
1. Rights and Duties of Owners. The rights and duties of the owners with respect to
sanitary sewer, water, electricity, gas and telephone lines and facilities shall be governed by the
following:
12
a. Easement. Wherever sanitary sewer or water connections or electricity, gas,
telephone, or other similar lines or pipes are installed within the Property, which
connections, lines or pipes, or any portion thereof, lie in or upon lots owned by other
than the owner of a living unit served by said connections, lines or pipes, the owners
of any living unit served by said connections, lines or pipes, shall have the right, and
are hereby granted an easement to the full extent necessary therefore, at reasonable
hours to enter upon the lot within the Property in or upon which said connections,
lines or pipes, or any portion thereof, lie, to repair, replace and generally maintain
said connections, lines and pipes, as and when the same may be necessary.
b. Common Connections_ Lines or Pipes. Wherever sanitary sewer or water
connections or electricity, gas or telephone lines or pipes, are installed within the
Property, which connections serve more than one living unit, the owner of each living
unit served by said connections, lines and pipes, shall be entitled to the full use and
enjoyment of such portions of said connections, lines and pipes, as service his living
unit.
C. Resolution of Disputes. In the event of a dispute between living unit owners with
respect to the repair or rebuilding of said connections, lines or pipes, or with respect
to the sharing of the cost thereof, then, upon written request of one of such owners,
addressed to the Association, the matter shall be submitted to the Board of Directors
who shall decide the disputes, and the decision of the board shall be final and
conclusive on the parties.
2. Declarant's Easement. Easements over the Property for the installation and
maintenance of electric, telephone, water, gas and sanitary sewer lines, pipes and facilities, and for
drainage facilities, as shown on the recorded plat of the Property and as may be hereinafter required
or needed to service the Property, or any living units, are hereby reserved by Declarant, together with
the right to grant and transfer the same.
ARTICLE IX
Mh,
In addition to all other covenants contained herein, the use of the lots and each living unit
thereon is subject to the following:
1. Restricted Use. Except as otherwise provided herein, none of the lots shall be used
except for residential purposes. No lot shall have more than one living unit thereon. No building
shall be erected, altered, placed or permitted to remain thereon other than a building or buildings
containing townhouse -type units used for residential purposes.
2. Business and Related Use. No part of the Property shall ever be used or caused,
allowed or authorized in any way, directly or indirectly, to be used for any business, commercial,
13
manufacturing, industrial, mercantile, storing, vending or other such purposes.
3. Noxious or Offensive Activities. No noxious or offensive activity shall be carried
on upon any part of the Property, nor shall anything be done thereon which may be, or may become,
an annoyance or nuisance to the neighborhood, or which shall in any way interfere with the quiet
enjoyment of each of the owners, of his respective living unit or which shall in any way increase the
rate of insurance.
4. Restricted Residences. No structure of a temporary character, trailer, basements,
tent, shack, garage, barn or other outbuilding shall be used on any lot at any time as a residence,
either temporarily or permanently.
5. Pets and Animals. No animals, livestock, or poultry of any kind shall be raised,
bred, or kept on or within any lot or living unit except that dogs, cats or other household pets may
be kept on or within the lots or living units, provided they are not kept, bred or maintained for any
commercial purpose, or in unreasonable numbers.
Pets taken to common areas must be on a leash and owners must carry equipment to clean
up immediately all droppings left by their pets.
Notwithstanding the foregoing, no animals or fowl may be kept on the Property which result
in any annoyance to, or are obnoxious to other living unit owners or tenants in the vicinity.
6. Vehicles and Recreational Equipment. No vehicles shall be temporarily or
permanently parked or stored on a lot or in the common area. No recreational equipment or vehicle
shall be parked or stored temporarily or permanently on a lot, driveway or street within the
subdivision.
7. Exterior Lighting. No exterior lighting shall be allowed without approval from the
Architectural Review Committee. Temporary Christmas lighting displays are allowed for no more
than forty consecutive days. Lighting displays shall not be illuminated between 11:00 p.m. and
sunrise.
8. 'Trash. All rubbish, trash and garbage shall be regularly removed from the Property,
and shall not be allowed to accumulate thereon.
9. Antennas. No owner may be permitted to construct or use and operate his own
external radio or television antenna, `.without the written approval of the Architectural Committee.
l . General Rules of Law to Apply. Each wall which is built as a part of the original
14
construction of the homes upon the Property and placed on the dividing line between the lots shall
constitute a party wall, and, to the extent not inconsistent with the provisions of this Article, the
general rules of law regarding party walls and liability for property damage due to negligence or
willful acts or omissions shall apply thereof.
2. Sharing of Repair and Maintenance. The cost of reasonable repair and
maintenance of a party wall shall be shared by the owners who make use of the wall in proportion
to such use.
3. Destruction by Fire or Other Casualty. If a party wall is destroyed or damaged by
fire or other casualty, any owner who has used the wall may restore it, and if the other owners
thereafter make use of the wall, they shall contribute to the cost of restoration thereof in proportion
to such use without prejudice.
4. Weatherproofing. Notwithstanding any other provision of this Article, an owner
who by his negligence or willful act causes the party wall to be exposed to the elements shall bear
the whole cost of furnishing the necessary protection against such elements.
5. Right to Contribution Runs with Land. The right of any owner to contribution
from any owner under this Article shall be appurtenant to the land and shall pass to such owner's
successors in title.
6. Arbitration. In the event of any dispute arising concerning a party wall, or under the
provisions of this Article, then upon written request of one of such owners, addressed to the
Association, the matter shall be submitted to the Board of Directors who shall decide the dispute,
and the decision of the Board shall be final and conclusive on the parties.
ARTICLE XI
1. Architectural Approval. No building, fence, wall or other structure shall be
commenced, erected or maintained upon the Property, nor shall an exterior addition to or change or
alteration therein be made until the plans and specifications showing the nature, kind, color, shape,
height, materials, location and other material attributes of the same shall have been submitted to and
approved in writing as to harmony of external design and location in relation to surrounding
structures and topography by the Architectural Committee established pursuant to the provisions of
paragraph 2 of this Article. In the event said Board fails to approve the plans within thirty days after
said plans and specifications have been submitted to it, approval will not be required and this Article
will be deemed to have been fully complied with.
2. Appointment of Architectural Committee. Declarant shall initially appoint the
Architectural Committee, consisting of not less than three members, who shall remain in office until
Declarant's Class B Membership shall have terminated. From and after such time or event, as the
15
case may be, the Architectural Committee shall be composed of the Board of Directors of the
Association or by three members of the association. In the event of the death or resignation of any
member of the committee prior to the time when the Board of Directors of the Association is vested
with Authority, Declarant shall have the right to appoint such member's successor.
1. Enforcement. The Association, in the first instance, or any owner, should the
association fail to act within a reasonable time, shall have the right to enforce, by any proceeding at
law or in equity, all limitations, restrictions, liens and charges now or hereafter imposed by the
provisions of this Declaration, or any amendment hereto. Failure by the Association or by any owner
to enforce any limitation, condition, reservation, lien, charge, covenant or restriction herein contained
shall in no event be deemed a waiver of the right to do so thereafter. Deeds of conveyance of said
property, or any part thereof, may contain the above restrictive covenants by reference in such deeds,
or any part thereof, each and all such restrictive covenants shall be valid and binding upon the
respective grantees. Violators of any one or more of such covenants may be restrained by any court
of competent jurisdiction and damages awarded against such violators, provided, however, that a
violation of these restrictive covenants or any one or more of them shall not affect the lien of any
mortgage or deed of trust not of record or which hereafter may be placed of record upon said lots or
any part thereof.
2. Severability. Invalidation of anyone of these covenants or restrictions, or any
portion thereof, by judgment or court order shall in no way affect any other provisions which shall
remain in full force and effect.
3. Term. The covenants and restrictions of this Declaration shall run with and bind the
land for a term of twenty years from the date this Declaration is recorded, after which time they shall
be automatically extended for successive periods of ten years for so long as the property shall
continue to be used for residential uses.
4. Amendment. This Declaration may be amended by an instrument signed by not less
than seventy-five percent of the lots owners. Any amendment must be recorded and receive prior
approval from the City Council, Kalispell, Montana. Declarant may amend this document prior to
delivery of the first deed to an owner.
IN WITNESS WHEREOF, the Declarant has executed this instrument the day and year first
above written.
Nolan Holdings L.L
BY:
Harold N. Beach, Managing Member
16
STATE OF MONTANA )
ss.
County of Flathead )
On this _ day of March, 2004, before me, the undersigned, a Notary Public for the State
of Montana, personally appeared Harold N. Beach, known to me to be the Managing Member of
Nolan Holdings, L.L.C., the Corporation whose name is subscribed to the foregoing instrument and
acknowledged that such Corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my signature and affixed my Notarial Seal
the date first above written.
Joann L. Kizer
Notary Public for the State of Montana
(SEAL) Residing at Columbia Falls, Montana
My commission expires 6-9-2006
17
Anril 13, 2004
Kalispell City Planning Board and Zoning Commission:
The following is in reference to the Greenery Preliminary
Landscape Plan (Sec. 1 - Twnsp 28N - Rge 22W - PMM -
Flathead County MT):
We recommend the six two -level townhouse buildings be
changed to one -level townhouses. This would be in
compliance with the single family dwellings on the north side
of Parkway Drive (above the Greenery). Such change should
not block the view of any of the houses on the north side of
Parkway Drive.
Storie Family Living Trust,
Kenneth G. Storie, Ttee ,7
Mildred E. Storie, Ttee(;
U
C� _
+.G a �J �.��u.ittiti 2..i� �.� �t�� L�- t� � V1.. � "L,r! `�-l.� t3���'�O Ci° 7 � � �'�✓ '�"'1`, .�
C �, � J p {
`S�.'� Vic..__ ��'�-4�.�� �'����.�5.� L;—�.`i..�� � �'�```_ �1�� c`�` z\,
��5� �� �� \� ��� �r��
a ��� ��� � ��� �� �.� ���
������
�-�t
c�...
�>
Fv\ � �--�
�J�
04112/04
Tri Citv Planning Board
17 2"d Street East
Kalispell, MT
59901
APR
U L.004
M-C17Y, PLANNING QFFKE
To Whom It Mav Concern:
As a homeowner on Parkway Drive Lot #2, we will be having the proposed town homes
directly behind our lot. In our covenants for Sunrise Views Subdivision it states that all
houses on the north side of the street are to be single level dwellings as not to block the
views of the homes on the south side. We feel that this should also be taken into
consideration for the proposed development of Mr. Beach. The town homes will block
the views we have of the mountains and areas north of us. We also feel four single
duplexes on the proposed plan would be more than adequate. Please consider our
comments and thoughts concerning this matter. Thank you.
Sincerely.
Dick and Mary Sonju
753 Parkway Drive
Kalispell, MT
D9901
DrLCLAIZATION OI'
CONDil1'f0NS, C'UVENriiNTS :iN1) 1ZLS'i'lZIUl*10NS
THIS DECLARATION, made this � (� day of .=.lc�n�t 1997by Charles E. Keller
of Kalispell, {vlontana, herein itle:- c"eI'eitrcd to as the "Declarant r
WITNESSij'I'll:
WHEREAS, Declarant is the owner of the real property hereinafter described and are
desirous of Subjecting said real property to the conditions, covenants and restrictions hereinafter
set forth, each and all of which is and are For the benefit of said property and for each owner
thereof; which shall inure to the benefit of and pass with said property and each and every parcel
thereof and shall apply to and bind the Successors in interest, and any owners tliereoF;
NOW, THEREFORE, the Declarant being the owner of all of the said property and having
established a general plan For the improvements and development of said property, does hereby
establish the conditions, covenants and restrictions upon which and subject to specified lots and
portions of lots within said subdivision shall be unproved or sold and conveyed by them as owners
and hereby declare that said property is and shall be held, transferred, sold and conveyed subject
to the conditions, covenants and restrictions hereinafter set Forth. 'File conditions, covenants and
restrictions hereina{ter set forth are to run with the land and shall be binding upon all successors in
interest of the Declarants.
l ). Property - The real property which is and shall be held and shall be conveyed,
transferred and sold subject to the conditions, covenants and restrictions of this Declaration is
located in the County of Flathead, State of Montana, and is more particularly described as
1o1lows, to -wit:
Lots one through five and seven through eighteen of the Sunrise View Subdivision
as recorded in the records of Flathead County, Montana, located in the NE 1/4 of
Section 1, Towltship 28 N., Range 22 W., P.M.M.
2). Purpose - The real property described in Paragraph I hereof is subjected to the
conditions, covenants and restrictions hereby declared to insure the best use and the most
appropriate development and improvement of each building site thereof, to protect the owners of
building sites against such improper use of surrounding building sites as will depreciate the value
of their property; to preserve, so far as is practicable, the natural beauty of said property; to insure
the highest and best development of said property; to encourage and secure the erection of
attractive homes thereon, and in genera{ to provide adequately for a high type and quality of
improvements in said property, and thereby to enhance the values of improvements made by
purchasers of building sites therein.
5/nglC LeYC1wvVYeiiinfzs -Lois {, _, S, 4,5, and 3 s{la{{ be a .:is-ic—i.0 to single
level homes, or single level duplexes.
`}) .1welfing Size - No dwelling Shull : e permitted On any lot, file floor area- of which
is less than 1500 square feet For a single level lionie, or less than 995 square feet for multi -level
homes.
5). Onsite Drainage - Individual lots will be required to be excavated and landscaped
so as to retain all storm water onsue. Drainage litclies and swaies exiting the property to
.J=!nt lots or sireets will not be permitted.
61. z nforeenient - if ale owners of lots in said subdivision or any of them or their
ioiatt aily Ur :lie (_ontiitions, L:Cvenants and restrictions Set ibrih
heirs, SttCCeSS6i"S or assigns ;;i2fiil
Iielemiloove, :Inv other person Or'7ersons owning rem property ! n said _ubuivision :nav OFOSCCLite
ativ DroceeditiI at law OF :n CCIUity 81_4a11iSt the person of persons vioiating any ot: a&!U COlidltlotl,
i:Ovetiants atiU CeSUICtions wither iQ ULCVettt SUC11 'Awiluon :)r to !ccovCr Janiat�es (or SUcil
1'iQiati011 c)r bot{l.
7). Severability - Invalidation of any one of these covenants by judgment or court
order shall in no wise allect any of the other provisions which small remain in full force and elTect.
3), Term - These covenants are to run with the land and shall be binding on all parties
and all persons claiming wider theni for a period of 25 years from the date these covenants are
recorded, alter which time said covenants sliall be automatically extended for successive periods
of 20 years, unless an instrument in writing signed by a majority of [be owners of the lots in said
subdivision has been recorded agreeing to change said covenants in whole or in part.
Dated this J b day of , 1997
(-ram: Q2'f
Charles G_ Keller
STATE OF MONTANA )
County of Flathead )
On this��day of� vA` v , 1997, before the the undersigned, a Notary Public for the State
of Montana, personally appeared Charles G. Keller, known to the to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that they executed the same.
In witness whereof, I have set my hand and affixed my Notarial Seal the day and year first above
written,
Notary Public for lie . t t f orttaaa
Residing at �G
My commission Gxpirs
I pjs/keller covenants.wps
I�
f�
f,
I �+ 4
t�
ICE R_ 1
Subject Property I
FOUR MILE DR I
- X Decta 4EC
AG'm,l I RES 3 4
O , �.., v CU 34 35U 36 AD 1,
R 2 3 37 38
Mi
NTY4D 2DCCf 32444 l3
DA
F I VIEW S 44
US S� 2
I GI air -v
4 g �. 2 7 y /48 41
i 4 ;' I qD < yAN �4
2
s � 0�
13 ;> BK 23
Q 7 6
1 O� 6
�,�� V S� 4 S 8/ ��l 7
1 1 , 2
4 11 $
7 � 2XA 18 3, B 10 4 1 ��
2 p� 5 g 12
17 ❑'NEI ��� 4 e �13
16 ,
��4 �� fp 15713 1 A� �IL
.��'11 B� C �� 1 i 2 3 4
4 5 ! 14
VICINITY MAP PLOT DATE: 3/15/04
H \gis\site\ka04_6.dwg
NOLAN HOLDINGS, LLC
REQUEST FOR ANNEXATION & INITIAL ZONING
OF R-5, RESIDENTIAL / PROFESSIONAL OFFICE USE
WITH A PLANNED UNIT DEVELOPMENT (PUD) OVERLAY
FROM SAG-10, AGRICULTURAL, FLATHEAD COUNTY ZONING
FILED CONCURRENTLY WITH PRELIMINARY PLAT &
PUD (PLANNED UNIT DEVELOPMENT) APPLICATION
FILE KA-04-6 SCALE 1" = 300'