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Staff Report/Preliminary Plat Phase 3CTri-City Planningis 17 Second Street East — Suite 211 Kalispell, Montana 59901 Phone: (406) 758-1850 Fax: (406) 751-1858 tricity@centurytel.net www.tricityplanning-mt.com REPORT TO: Kalispell Mayor and City Council FROM: Tom Jentz, Director Chris A. Kukulski, City Manager SUBJECT Glacier Village Greens Phase IIIC Preliminary Plat Approval MEETING DATE: December 15, 2003 BACKGROUND: This is a request by the Glacier Village Greens Homeowners Association for preliminary plat approval of a 4-lot residential subdivision on 1.305 acres located on the east side of East Nicklaus Drive just south of the intersection with Ritzman. The Homeowners Association, as the owner, is formally requesting the City to amend the original Phase IIIA Plat approved in 1993 by removing the parkland designation for a portion of Homeowners Park B and at the same time approve a 4-lot single-family residential subdivision on this site. There are two separate issues to address, one being the design of the subdivision and the second being the appropriateness of allowing the parkland to be converted to residential development. The subdivision is straightforward and staff is recommending approval with 14 conditions. Note that the applicants did request a waiver of sidewalks. Staff and the Planning Board did not concur with this. Concerning the re-classification of the homeowner park, 76.9% of the Homeowners Association approves of this, the existing homeowners' park is undeveloped now and the proceeds from the residential development will be used to develop the homeowners' community center within the development and current parkland exceeds statutory requirements by a factor of 5. At the public hearing the applicant's representative and five members of the public spoke in support of the project stating that 76.9% of the homeowners (lot owners) in Village Greens have voted in support of undertaking this project. The benefit to the association which involved trading the lots for a new year round community center far outweighed any negative impacts by developing the undeveloped .74 acres of Homeowners Park. Rich DeJana, representing 19 property owners, spoke in opposition stating the City did not have ground to approve this subdivision because all of the homeowners who were party to the original dedication on the plat have not consented to the amendment. City Attorney Charles Harball in a letter (attached) stated that the Council did have authority to approve the change. Four other people representing 3 abutting lots spoke in opposition citing the need for a neighborhood park on the east side and the promise of a park next door that was never fulfilled when they bought their lots. After the public hearing the Board discussed the request at length. Condition #9 was amended to add a requirement for a pedestrian path from East Nicklaus to the river to encourage use of the linear park remaining. A motion was then made to accept Staff report Providing Community Planning Assistance To: ® City of Kalispell ® City of Whitefish ® City of Columbia Falls Glacier Village Greens Phase IIIC - Preliminary Plat Approval November 19, 2003 Page 2 of 2 #KPP-03-13 as findings of fact and recommend that the Plat of Glacier Village Greens Phase IIIC be forward on to City Council for approval with the 14 conditions as articulated by staff attached. COMMENDATION: A motion to authorize amending the recorded plat of Glacier Village Greens Phase IIIA to allow the conversion of a portion of Homeowners Park B into residential lots and adopt the resolution approving the preliminary plat of Glacier Village Greens Phase IIIC subject to the recommended 14 conditions would be in order. FISCAL EFFECTS: Minor positive impacts once fully developed. ALTERNATIVES: As suggested by the City Council. Respectfully submitted, Thomas R. Jentz Chris A. Kukulski Director City Manager Report compiled: November 19, 2003 c: Theresa White, Kalispell City Clerk Attachments: Transmittal letter Staff report #KPP-03-13 and application materials Draft minutes from I1/18/03 Planning Board meeting TRANSMIT\KALISPEL\2003 \KPP03-13MEM RESOLUTION CONDITIONALLYAPPROVING PRELIMINARY OF GLACIER VILLAGE GREENS PHASE 3C, MORE PARTICULARLY DESCRIBED AS A PORTION OF • • PARK t IN PHASE., , GLACIER VILLAGE GREENS SUBDIVISION IN THE W2SE4 OF •N 32, TOWNSHIP 29 NORTH,RANGE FLATHEAD COUNTY,• WHEREAS, the Glacier Village Greens Homeowners Association, the owner of certain real property described above, has petitioned for approval of the Subdivision Plat of said property, and WHEREAS, the Kalispell City Planning Board and Zoning Commission held a public hearing on November 18, 2003, on the proposal and reviewed Subdivision Report #KPP-03-13 issued by the Tri-City Planning Office, and WHEREAS, the Kalispell City Planning Board and Zoning Commission has recommended approval of the Preliminary Plat of Glacier Village Greens Phase 3C, subject to certain conditions and recommendations, and WHEREAS, the City Council of the City of Kalispell at its regular Council Meeting of December 15, 2003, reviewed the Tri-City Planning Office Report #KPP-03-13, reviewed the recommendations of the Kalispell City Planning Board and Zoning Commission, and found from the Preliminary Plat, and evidence, that the subdivision is in the public interest. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF KALISPELL, MONTANA AS FOLLOWS: SECTION I. That the Findings of Fact contained in Tri-City Planning Office Report #KPP-03-13 are hereby adopted as the Findings of Fact of the City Council. SECTION II. That the application of Glacier Village Greens Homeowners Association of the Preliminary Plat of Glacier Village Greens Phase 3C, Kalispell, Flathead County, Montana is hereby approved subject to the following conditions: Development of the subdivision shall be platted in substantial compliance with the approved preliminary plat which governs the location of lots, parklands and roadways within the subdivision except as modified by the conditions listed herein. (Kalispell Sub. Regs. Appendix C — Final Plat I(A) Contents of final Plat). 2. A note shall be placed on the face of the final plat stating that by vote of the Glacier Village Greens Homeowners Association and certification by the Glacier Village Greens Homeowners Board on June 9, 2003, the association did vote to approve an amendment to the GVG CC & R's and to amend the recorded plat of Glacier Village Greens Phase IIIA by removing the designation of homeowners park, parkland or open space from the area in lots of this subdivision and allow this land to be subdivided into residential building lots. (Site Review in consultation with the City Attorney). 3. Sidewalks, landscape boulevards and street trees serving the subdivision shall be constructed in accordance with the adopted Design and Construction Standards for the City of Kalispell for local streets. (Kalispell Sub. Regs. Section 3.01). 4. That a letter be obtained from the Kalispell Public Works Department approving the plans and specifications for water, sewer and drainage facilities for the subdivision. (Kalispell Sub. Regs. Section 3.12 — 3.15). 5. A letter from an engineer licensed in the State of Montana certifying that the improvements have been installed according to the required specifications shall be submitted at the time of final plat approval along with a letter from the Kalispell Public Works Department stating that the required improvements have been inspected and comply with the City standards. (Kalispell Sub Regs. Sections 3.09, 3.11 — 1.15). 6. A storm water drainage plan which has been designed by an engineer licensed in the State of Montana shall be prepared which complies with the City's Design and Construction Standards and shall be reviewed and approved by the Kalispell Public Works Department. (Kalispell Sub. Regs. Section 3.12 A). 7. The developer shall provide a letter from the U.S. Postal Service approving the plan for mail service. (Kalispell Sub. Regs. Section 3.22) 8. That the parkland dedication requirements shall be met by recognizing the existing park land and park improvements as well as open space within the existing Village Greens development. (Kalispell Sub. Regs. Section 3.19 (A)). 9. The applicant shall maintain the 30-foot irrigation strip that traverses Lot 3 as part of the Village Greens Homeowners Park B. On the face of the final plat, Lot 3 shall be correspondingly reduced and the 30-foot irrigation and access easement shall be maintained as part of Homeowners Park B. (Site Review Committee). Within this 30 foot wide park, a minimum 5-foot wide pedestrian path/trail with a minimum of an all weather gavel surface shall be constructed from East Nicklaus back to the edge of the linear Homeowners Park a distance of approximately 200 feet to allow pedestrian access to this area. (Planning_ Board) 10. Development of the landscape boulevard with location of street trees shall be placed in accordance with a plan approved by the Kalispell Parks and Recreation Director. (Site Review). 11. All utilities shall be installed underground. (Kalispell Sub. Regs. Section 3.17 A). 12. That a letter from the Kalispell Fire Department approving the number and placement of fire hydrants within the subdivision as well as fire flows shall be submitted with the final plat. (Uniform Fire Code). 13. All areas disturbed during development of the subdivision shall be re -vegetated with a weed - free mix immediately after development. (Kalispell Sub. Regs. Section 3.13). 14. That preliminary approval shall be valid for a period of three years from the date of approval. (Kalispell Sub. Regs. Section 2.04 (E(7)). SECTION III. Upon proper review and filing of the Final Plat of said subdivision in the office of the Flathead County Clerk and Recorder, said premises shall be a subdivision of the City of Kalispell. PASSED AND APPROVED BY THE CITY COUNCIL AND SIGNED BY THE MAYOR OF THE CITY OF KALISPELL, THIS 15TH DAY OF DECEMBER, 2003. Pamela B. Kennedy Mayor ATTEST: Theresa White City Clerk Tri-City Planning Office 17 Second Street East - Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tricityAcenturytel.net www.tricityplanning-mt.com November 19, 2003 Chris Kukulski, City Manager City of Kalispell P.O. Box 1997 Kalispell, MT 59903 Re: Glacier Village Greens Phase IIIC - Preliminary Plat Dear Chris: The Kalispell City Planning Board met on November 18, 2003 and held a public hearing to consider a request by the Glacier Village Greens Homeowners Association for preliminary plat approval of a 4-lot residential subdivision on 1.305 acres located on the east side of East Nicklaus Drive just south of the intersection with Ritzman. Tom Jentz, of the Tri-City Planning Office, presented staff report #KPP-03-13 evaluating the proposal. Jentz explained that the homeowners association, as the owner, is formally requesting the City to amend the original Phase IIIA Plat approved in 1993 by removing the parkland designation for a portion of Homeowners Park B and at the same time approve a 4-lot single-family residential subdivision on this site. Jentz said that the board had two separate issues to address, one being the design of the subdivision and the second being the appropriateness of allowing the parkland to be converted to residential development. He stated the subdivision was fairly straightforward and standard conditions could be applied. In relation to the homeowners park he reviewed six findings in the staff report supporting conversion re -iterating that the Glacier Village Greens Development exceeded parkland dedication requirements by a factor of 5 and that this was a homeowner's decision to move forward. At the public hearing the applicant's representative and five members of the public spoke in support of the project stating that 76.9% of the homeowners (lot owners) in Village Greens have voted in support of undertaking this project. The benefit to the association which involved trading the lots for a new year round community center far outweighed any negative impacts by developing the undeveloped .74 acres of Homeowners Park. Erica Wirtla, Sands Surveying, did ask for a waiver to sidewalks as there were none in the immediate neighborhood and sidewalks on this project would go nowhere. Rich DeJana, representing 19 property owners spoke in opposition stating the City did not have ground to approve this subdivision because all of the homeowners who were party to the original dedication on the plat have not consented to the amendment. Four other people representing abutting lots spoke in opposition citing the need for a neighborhood park on the east side and the promise of a park next door that was never fulfilled when they bought their lots. Providing Community Planning Assistance To: • City of Kalispell • City of Columbia Falls • City of Whitefish • Glacier Village Greens Phase IIIC November 19, 2003 Page 2 of 4 After the public hearing the Board discussed the request at length. An amendment to condition 9 was approved by unanimous vote to require a gravel pedestrian trail be extended from East Nicklaus back to the linear park to encourage pedestrian use of the homeowners' park. A motion was then made to accept Staff Report #KPP-03-13 as findings of fact and recommend that the Plat of Glacier Village Greens Phase IIIC be forward on to City Council for approval with the 14 conditions as articulated by staff attached. Please schedule consideration of this preliminary plat for the Kalispell City Council meeting of December 15, 2003. You may contact this board or Tom Jentz at the Tri-City Planning Office if you have any questions regarding this matter. Sincerely Kalispell City Planning Board George Taylor President GT/TRJ/ sm Attachments: Attachment A - Recommended Conditions of Approval Staff report #KPP-03-13 and application materials Draft minutes 11/ 18/03 Planning Board meeting c w/ Att: Theresa White, Kalispell City Clerk c w/o Att: Glacier Village Greens HOA, P.O. Box 5173, Kalispell, MT 59903 Sands Surveying, Inc., 2 Village Loop, Kalispell, MT 59901 TRANSMIT\KALISPEL\2003 \KPP-03-13 Glacier Village Greens Phase IIIC November 19, 2003 Page 3 of 4 ATTACHMENT A GLACIER VILLAGE GREENS Phase HIC PRELIMINARY PLAT - #KPP-03-13 CONDITIONS OF -•RECOMMENDED KALISPELL CITY PLANNING BOARD NOVEMBER 18, 2003 The Kalispell City Planning Board is recommending the following conditions to the Kalispell City Council for the above referenced preliminary plat. A public hearing was held on this matter at the November 18, 2003 planning board meeting: 1. Development of the subdivision shall be platted in substantial compliance with the approved preliminary plat which governs the location of lots, parklands and roadways within the subdivision except as modified by the conditions listed herein. (Kalispell Sub. Regs. Appendix C - Final Plat I(A) Contents of final Plat). 2. A note shall be placed on the face of the final plat stating that by vote of the Glacier Village Greens Homeowners Association and certification by the Glacier Village Greens Homeowners Board on June 9, 2003, the association did vote to approve an amendment to the GVG CC 8v R's and to amend the recoded plat of Glacier Village Greens Phase IIIA by removing the designation of homeowners park, parkland or open space from the area in lots of this subdivision and allow this land to be subdivided into residential building lots. (Site Review in consultation with the City Attorney). 3. Sidewalks, landscape boulevard and street trees serving the subdivision shall be constructed in accordance with the adopted Design and Construction Standards for the City of Kalispell for local streets. (Kalispell Sub. Regs. Section 3.01). 4. That a letter be obtained from the Kalispell Public Works Department approving the plans and specifications for water, sewer and drainage facilities for the subdivision. (Kalispell Sub. Regs. Section 3.12 - 3.15). 5. A letter from an engineer licensed in the State of Montana certifying that the improvements have been installed according to the required specifications shall be submitted at the time of final plat approval along with a letter from the Kalispell Public Works Department stating that the required improvements have been inspected and comply with the City standards. (Kalispell Sub Regs. Sections 3.09, 3.11 - 1.15). 6. A storm water drainage plan which has been designed by an engineer licensed in the State of Montana shall be prepared which complies with the City's Design and Construction Standards and shall be reviewed and approved by the Kalispell Public Works Department. (Kalispell Sub. Regs. Section 3.12 A). 7. The developer shall provide a letter from the U.S. Postal Service approving the plan for mail service. (Kalispell Sub. Regs. Section 3.22). 8. That the parkland dedication requirements shall be met by recognizing the existing park land and park improvements as well as open space within the existing Village Greens development. (Kalispell Sub. Regs. Section 3.19 (A)). 9. The applicant shall maintain the 30-foot irrigation strip that traverses Lot 3 as part of the Village Greens Homeowners Park B. On the face of the final plat, Lot 3 shall be Glacier Village Greens Phase IIIC November 19, 2003 Page 4 of 4 correspondingly reduced and the 30-foot irrigation and access easement shall be maintained as part of Homeowners Park B. (Site Review Committee). Within this 30 foot wide park, a minimum 5-foot wide pedestrian path/trail with a minimum of an all weather gravel surface shall be constructed from East Nicklaus back to the edge of the linear Homeowners Park a distance of approximately 100 feet to allow pedestrian access to this area. (Planning Board) 10. Development of the landscape boulevard with location of street trees shall be placed in accordance with a plan approved by the Kalispell Parks and Recreation Director. (Site Review) . 11. All utilities shall be installed underground. (Kalispell Sub. Regs. Section 3.17 A). 12. That a letter from the Kalispell Fire Department approving the number and placement of fire hydrants within the subdivision as well as fire flows shall be submitted with the final plat. (Uniform fire Code). 13. All areas disturbed during development of the subdivision shall be re -vegetated with a weed -free mix immediately after development. (Kalispell Sub. Regs. Section 3.13). 14. That preliminary approval shall be valid for a period of three years from the date of approval. (Kalispell Sub. Regs. Section 2.04 (E(7)). TRJ GLACIER VILLAGE GREENS PHASES 3C TRI-CITY PLANNING OFFICE STAFF REPORT #KPP-03-13 NOVEMBER t 2003 A report to the Kalispell City Planning Board and the Kalispell City Council regarding a request for preliminary plat approval of a 4-lot residential subdivision on land zoned R-4. A public hearing on this proposal has been scheduled before the Planning Board for November 18, 2003 in the Kalispell City Council Chambers. The Planning Board will forward a recommendation to the City Council for final action. The Glacier Village Greens Homeowners Association is petitioning the City of Kalispell to allow them to abandon .740 acres of homeowners' park located in Phase 3A of the subdivision and are submitting a 4-lot residential subdivision for the site. The homeowners park in question lies east of East Nicklaus Avenue abutting the Whitefish River just south of the intersection of Ritzman Lane. The Association wishes to do this because they consider this parkland as excess property and they are desirous of constructing a community center elsewhere in the Village Greens development. Proceeds from the development of these four lots would generate the necessary cash to construct the homeowner's community center without raising homeowner's fees. The Homeowners Association is requesting both specific action acknowledging the lifting of homeowners park designation of this portion of the Homeowners Park B and preliminary plat approval to create the 4-lot subdivision. By way of background, the Flathead County Commissioners gave preliminary approval to Glacier Village Greens Phases 3 - 5 in 1991. Final plat approval for Phase 3A was granted by the Commissioners in 1993. Condition 11 of the final plat approval required that parks on the east side and west side of Glacier Village Greens were to be set aside to be owned and managed by the Home Owners Association. The activities of the Homeowners Association are governed by the Glacier Village Greens Covenant, Conditions and Restrictions. At the time of final plat approval the Flathead County Commissioners were made party to the covenants for enforcement purposes. Subsequent to that time Glacier Village Greens has been annexed to the city of Kalispell. The Homeowners Association did conduct a vote of their members to determine if the association would approve of the disposition of the parkland area. The bylaws require a 75% affirmative vote of all lot owners to amend the covenants. As of August 1, 2003, the required 75% vote had been achieved to amend their covenants and support the disposition of the parkland. Staff notes that Glacier Village Greens has parkland over and above what is required by state law (in excess of 1/9 of the land area in platted lots) and therefore this portion of parkland is not statutorily required to be maintained. A. Petitioner and Owners: Glacier Village Greens Homeowners' Association P.O. Box 5173 Kalispell, MT 59903 Technical Assistance: Sands Surveying, Inc. 2 Village Loop Kalispell, MT 59901 (406) 755-6481 #KPP-03-13 Page 1 of 7 B. Nature of Application: This is a request for preliminary plat approval of a 4-lot residential subdivision on approximately .740 acres in the Glacier Village Greens development. This report will address the appropriateness of the actual subdivision of the land for residential purposes. At the end of this report under "Compliance with Subdivision Regulations" staff will discuss the issue of removing parkland designation which would allow this subdivision. C. Location and Legal Description of Property: The property in question lies on the east side of East Nicklaus Avenue abutting the Whitefish River just south of the intersection of Ritzman Lane. The property can be described as a portion of Homeowners Park B in Phase 3A Glacier Village Greens Subdivision in the W2SE4 of Section 32, Township 29 North, Range 21 West, P.M.M., Flathead County, Montana. a. Total Area: 1.305 acres b. Total Lot Area in Lots: .740 acres c. Area in Roads: .000 acres d. Minimum Lot Size: .142 acres (5,154 square feet) e. Maximum Lot Size: .240 acres (10,450 square feet) E. Existing Land Use: Homeowners Park B exists as a very thin linear park located between the backs of houses (lots) and the Whitefish River from West Evergreen Drive to Ritzman Lane. This linear park "bumps out" to East Nicklaus Drive where this subdivision is proposed. The Park at this location measures 160 feet deep from East Nicklaus to the center of the Whitefish River and extends 342 feet along East Nicklaus. The 1.3 acre park area in this location would be reduced by .74 acres. In addition, the frontage and access from East Nicklaus would be lost. The site is generally vacant mowed stubble. An irrigation pump house lies along the river between lots 3 and 4 and a 30 foot irrigation easement extends from the river to East Nicklaus and ultimately out to serve the golf course. A city lift station and electrical transformers occupies a chain link fenced area on the southwest corner of lot 4. The site is otherwise undeveloped and apparently unused. E. Adjacent Land Uses and Zoning: The area is characterized by single-family residential development in the area. North: Single-family homes, City R-4 zoning East: Whitefish River, Open pasture, County R-1 zoning South: Single-family homes (immediate adjoining lot is vacant); City R-4 West: Single-family residential, City R-4 zoning F. General Land Use Character: The general land use character of the area is an urban residential golf course community served by public water and sewer. The predominate land use is single family with an increasing number of two -unit townhouses. G. Zoning: This property is zoned R-4, a Two Family Residential district, which allows single-family and duplex housing as permitted uses. H. Utilities: This subdivision would receive full urban services. a. Water: Evergreen Water District b. Sewer: City of Kalispell c. Solid Waste: City of Kalispell d. Gas: Northwest Energy #KPP-03-13 Page 2 of 7 e. Electricity: Flathead Electric Coop (underground) f. Telephone: CenturyTel (underground) g. Fire: City of Kalispell h. Schools: School District #5, Kalispell i. Police: City of Kalispell This matter came before the site development review committee two separate times. The only substantial issue identified was the need to maintain an access from East Nicklaus to the river. It was pointed out that the linear park along the river was extremely narrow and the only access the homeowners who did not live on the river would have to the river or the linear open space would be through the east side park now proposed for subdivision. It was suggested that the 30-foot irrigation and access permit be maintained for public access to the river. The easiest way to accomplish this would be to keep this portion of the homeowner's park intact. This application is reviewed as a major subdivision in accordance with statutory criteria and the Kalispell City Subdivision Regulations. A. Effects on Health and Safety: Eire: This subdivision would be in the service area of the Kalispell Fire Department. The property can be considered to be a low risk of fire because the subdivision and homes within the subdivision would be constructed in accordance with the Uniform Fire Code and have access which meets City standards. All of the lots will abut an improved paved pubic street that was constructed to county standards. The property does not have steep slopes or woody fuels. Hydrants, if additional are needed, will be required to be placed in compliance with the requirements of the Uniform Fire Code and approved by the fire chief. Flooding: According to FIRM Panel # 1810D dated 10/ 16/96 the site is located entirely in Zone C which is not a flood prone area and no special permits are required for development. It should be noted that the residential lot site is immediately adjacent to the floodplain of the Whitefish River; therefore it would be appropriate to show the floodplain on the final plat for future reference so that the lot lines could be verified against the floodplain and for future assurance of potential lot owners. Access: Access to the subdivision would be from existing City and County roads. East Evergreen Drive provides access to the development and an interior roadway system. East Nicklaus is an existing City street that provides immediate access to each potential lot. Sidewalks would be required to address pedestrian access along the fronts of these lots. B. Effects on Wildlife and Wildlife Habitat: This property is generally level with very little variation in the terrain. It has been part of the Glacier Village Greens community since the beginning. While the site is adjacent to the Whitefish River, all vegetation has been mowed and otherwise removed. The site has existed as an undeveloped urban park surrounded by residential development for many years. Removal of this land at this time will not significantly impact wildlife or habitat for wildlife. C. Effects on the Natural Environment: Surface and groundwater: This subdivision will be served by public water and sewer #KPP-03-13 Page 3 of 7 thereby minimizing any potential impacts to the groundwater. The Whitefish River lies along the eastern boundary of the subdivision and care should be taken when developing the lots to insure that there is no sloughing into the river during construction. Protection of the remaining Homeowners Park B as it abuts the Whitefish River will help insure this. Train This site is relatively level and does not pose any unusual challenges to site drainage. There is no storm drain system in the immediate area and storm water will have to be managed using on -site retention methods as part of the storm water management plan. Steep sloes The site proposed for lots is flat and does not pose any threats to slope failure or steep grades as long as development is confined to that area within the proposed lots. Slopes drop off rapidly to the river bank in that portion of the site that is being retained in Homeowners Park B and this will serve to protect the banks of the Whitefish River. Water: Water service to the subdivision is provided by the Evergreen Water District. The water main already exists in the street abutting this property. The extension of 4 services would be required. The Fire Marshall will determine if adequate spacing of fire hydrants exists to meet the requirements of the Uniform Fire Code. Sewer: Sewer service will be provided by the City of Kalispell. Sewer already exists in the adjacent street. The applicant will be required to extend 4 services lines to the property to serve the proposed 4 lots. Roads.: Traffic projections for this subdivision are estimated to be approximately 40 additional vehicle trips per day based on the estimate of 10 vehicle trips or less per residence per day in the area. The subdivision roads will access onto West Evergreen Drive which will make a connection to other streets in the area, Whitefish Stage Road and Hwy 2 East. These roads can adequately accommodate the increase of 40 more vehicles per day. Schools: This development is within the boundaries of Evergreen School District. The school district superintendent has consistently responded to these new subdivisions by stating that the district has no objections to the subdivision and will accommodate any new students into the district. It can be anticipated that approximately 2 additional school age children may be generated from this subdivision at full build out. This would have a potentially insignificant impact on the district. Parks and Open pace: The state and local subdivision regulations have parkland / open space requirements for major subdivisions in the amount of 11 percent or one - ninth of the area proposed for the development. The area proposed for subdivision is approximately 32,234 square feet. One -ninth of this would be approximately 3,580 square feet. Please note that this site currently exists as a park site and that the development of this site is premised on the fact that the Village Green Development already has in excess of the required 1/9 parkland requirement. Further developments and phases in Village Greens have not been assessed parkland requirements. #KPP-03-13 Page 4 of 7 From a practical standpoint, however, Homeowners Park B extends from West Evergreen Drive northerly to just past this site. This homeowners park, for the most part exists as a ribbon of land along the banks of the Whitefish River intended to protect the character of the banks of the Whitefish River. The area proposed for lots is the only significant access to the Whitefish River for any property owners other than the immediate lots which abut the river. Staff recommends that the 30-foot irrigation easement traversing lot 3 be maintained in Homeowners Park B to insure that property owners do have some access to the river. This access strip is approximately 2,850 square feet in size. Police: This subdivision would be in the jurisdiction of the City of Kalispell Police Department. The department can adequately provide service to this subdivision, however the cumulative impacts of growth within the city further strains the department's ability to continue to provide the high level of service the department is committed to. Fire Protection: Fire protection services will be provided by the Kalispell Fire Department, and the subdivision will need to meet the requirements of the Uniform Fire Code. The fire department will review and approve the number and location of hydrants within the subdivision as well as fire flows and access. Generally, fire risk is low. Solid Waste: There is sufficient capacity within the landfill to accommodate this additional solid waste generated from this subdivision. Medical Services: Ambulance service is available from the fire department and ALERT helicopter service. Kalispell Regional Hospital is close, less than two miles from the site. E. Effects on Agriculture and agricultural water user facilities: The site has been traditionally used as open space within the Glacier Village Greens Development. Its proximity to urban services makes this property prime for the type of development being proposed. There will be no impact on agricultural uses within the Valley and no impact on agricultural water user facilities since this property will be served by a public water system. F. Relation to Growth Policy Plan Map: This property is designated in the Kalispell Growth Policy as urban residential, a residential zone with densities of 4-12 units per acres. This subdivision proposes 4-units on % acre and is within the Growth Policy parameters and does comply with the plan. G. Compliance with Zoning: This property is zoned R-4, a Two -Family Residential district that is intended for single-family and duplex residential development and has a minimum lot size requirement of 6,000 square feet and a minimum lot width of 50 feet. All of the lots within the subdivision comply with the minimum lot size and minimum lot width requirements of the R-4 zoning district. H. Compliance with the Kalispell Subdivision Regulations: The subdivision as designed complies with all aspects of the Kalispell Subdivision Regulations except for the issue surrounding Condition 11 of the approved preliminary plats of Phase II, III, and IV of Glacier Village Greens and the corresponding notation on the final plat of Glacier Village Greens Phase IIIA calling out the site proposed for current subdivision as Homeowners Park B. By submission of this preliminary plat, the Glacier Village Greens Homeowners Association is requesting that the City of #KPP-03-13 Page 5 of 7 Kalispell amend the final plat of Glacier Village Greens Phase IIIA by removing the designation of homeowner's park, open space or parkland from that portion of Homeowners Park B that is proposed to be subdivided into residential lots per this plat application. Staff does support the recommendation for the following reasons. a. The Glacier Village Greens Homeowners Association (GVG) is the owner of this homeowner's parkland. b. The GVG did conduct an election according to their bylaws, certified the election and based on this election as the owner requested that this action occur. c. The city should not be drawn in to arbitrate the appropriateness of an election that a local Board has certified. This is a private issue for members of the association to internally address. d. The GVG Development has more parkland than is statutorily required and therefore reduction of the proposed .74 acres will not put them out of compliance with city or state requirements. The GVG development has 30,607 acres in com__Mon parkland and open space. After subdivision, they will have 29.867 acres. They are required to maintain 5.86 acres in parkland based on 53.301 acres in residential lots to date counting this subdivision of .74 acres. e. The resulting proceeds from the sale of the lots are pledged to be used to develop a community center which will serve to benefit all of the property owners with a year round facility. f. The portion of Neighborhood Park B proposed for lots had not been put to active use for the 10 years since it was platted. This office did receive a letter from Richard DeJana, esq. representing 19 property owners within the Glacier Village Greens Development. The attached letter states that the city does not have grounds to amend the plat and remove the parkland as the parkland was dedicated forever to the owners of Village Greens. City Attorney Charles Harball did respond to Mr. DeJana's letter stating that the City was within its power to convert a portion of the Homeowner Association's parklands to another use based upon a request of the full Homeowners Association. Staff recommends that the Kalispell City Planning Board adopt staff report #KPP-03-13 as findings of fact and recommend to the Kalispell City Council that the preliminary plat be approved subject to the following conditions: 1. Development of the subdivision shall be platted in substantial compliance with the approved preliminary plat which governs the location of lots, parklands and roadways within the subdivision except as modified by the conditions listed herein. (Kalispell Sub. Regs. Appendix C - Final Plat I(A) Contents of final Plat). 2. A note shall be placed on the face of the final plat stating that by vote of the Glacier Village Greens Homeowners Association and certification by the Glacier Village Greens #KPP-03-13 Page 6 of 7 Homeowners Board on June 9, 2003, the association did vote to approve an amendment to the GVG CC &, R's and to amend the recoded plat of Glacier Village Greens Phase IIIA by removing the designation of homeowners park, parkland or open space from the area in lots of this subdivision and allow this land to be subdivided into residential building lots. (Site Review in consultation with the City Attorney). 3. Sidewalks, landscape boulevard and street trees serving the subdivision shall be constructed in accordance with the adopted Design and Construction Standards for the City of Kalispell for local streets. (Kalispell Sub. Regs. Section 3.01). 4. That a letter be obtained from the Kalispell Public Works Department approving the plans and specifications for water, sewer and drainage facilities for the subdivision. (Kalispell Sub. Regs. Section 3.12 - 3.15). 5. A letter from an engineer licensed in the State of Montana certifying that the improvements have been installed according to the required specifications shall be submitted at the time of final plat approval along with a letter from the Kalispell Public Works Department stating that the required improvements have been inspected and comply with the City standards. (Kalispell Sub Regs. Sections 3.09, 3.11 - 1.15). 6. A storm water drainage plan which has been designed by an engineer licensed in the State of Montana shall be prepared which complies with the City's Design and Construction Standards and shall be reviewed and approved by the Kalispell Public Works Department. (Kalispell Sub. Regs. Section 3.12 A). 7. The developer shall provide a letter from the U.S. Postal Service approving the plan for mail service. (Kalispell Sub. Regs. Section 3.22) 8. That the parkland dedication requirements shall be met by recognizing the existing park land and park improvements as well as open space within the existing Village Greens development. (Kalispell Sub. Regs. Section 3.19 (A)). 9. The applicant shall maintain the 30-foot irrigation strip that traverses Lot 3 as part of the Village Greens Homeowners Park B. On the face of the final plat, Lot 3 shall be correspondingly reduced and the 30-foot irrigation and access easement shall be maintained as part of Homeowners Park B. (Site Review Committee). 10. Development of the landscape boulevard with location of street trees shall be placed in accordance with a plan approved by the Kalispell Parks and Recreation Director. (Site Review) . 11. All utilities shall be installed underground. (Kalispell Sub. Regs. Section 3.17 A). 12. That a letter from the Kalispell Fire Department approving the number and placement of fire hydrants within the subdivision as well as fire flows shall be submitted with the final plat. (Uniform fire Code). 13. All areas disturbed during development of the subdivision shall be re -vegetated with a weed -free mix immediately after development. (Kalispell Sub. Regs. Section 3.13). 14. That preliminary approval shall be valid for a period of three years from the date of approval. (Kalispell Sub. Regs. Section 2.04 (E(7)). TJ #KPP-03-13 Page 7 of 7 SANDS SURVEYING, INC. 2 Village Loop Kalispell, MT 59901 406-755-6481 Fax 406-755-6488 October 6, 2003 Mr. Tom Jentz, Director Tri-City Planning Office 17 2"d Street East, Suite 211 Kalispell, MT 59901 RE: Glacier Village Greens, Phase IIIC Dear Tom: Attached please find the application materials for the major subdivision, Glacier Village Greens, Phase IIIC. This is being considered a major subdivision as it is within the boundaries of an existing subdivision; Glacier Village Greens. In addition to the application, please find a check in the amount of $770, an 11 x 17 copy of the preliminary plat, a certified adjoining landowners list and 16 copies of the preliminary plat. The Environmental Assessment requirement was waived as this is in a "master -planned" community. For the general information of the Kalispell Planning Board and Kalispell City Council, it is necessary to clarify that the land for this proposed subdivision had previously been dedicated as "parkland" by a previous phase of Glacier Village Greens. This land is owned and maintained by the Homeowner's Association. As allowed by the by-laws of that organization, a vote was conducted by the Homeowner's Association and 77% of the voters returned an affirmative vote to allow this land to be re -designated and subdivided, (75% is required). Proceeds from the sale of the lots will then be utilized by the Homeowner's Association to build a community center for the Glacier Village Greens residents. It is important to note that this re -designation of parkland to developable land does not reduce the required amount of parkland in the Glacier Village Greens subdivision. There is an excess of parkland within the development. Golf course lands are not included within this parkland calculation. Furthermore, the Homeowners Association, in response to the concerns that there is no "developed" parkland on the eastern side of the Glacier Village Greens, are considering creating a cross-country ski trail that would parallel the river. It is my understanding that this will be before the Kalispell Planning Board on Wednesday, November 121h and the Kalispell City Council on Monday, December 1s`. Please let me know if you have any further questions or concerns. Sincerely, LWirtala This application shall be submitted, along with all information required by the applicable Subdivision Regulations and the Montana Subdivision and Platting Act, and the appropriate fee to: Tri-City Planning Office, 17 Second St East, Suite 211 Kalispell, Montana 59901 Phone: (406)751-1850 Fax: (406)751-1858 FEE SCHEDULE: Major Subdivision (6 or more lots) $650 + $30/lot Condominiums (6 or more units) $650 + $30/unit Mobile Home Parks & Campgrounds (6 or more spaces) $650 + $30/space Amended Preliminary Plat $200 Subdivision Variance $100 (per variance) Commercial and Industrial Subdivision Add $200 to base preliminary plat fee SUBDIVISION NAME: GLACIER VILLAGE GREENS, PHASE IIIC •! " • 0-5-*W-93 Z-4 10 L Mailing Address P.O. Box 5173 City ISPELL State MT zip--'59903 Name & Address SANDS SURVEYING, INC.. 2 VILLAGE LOOP, KALISPELL MT 59901 Name & Address WMW ENGINEERING 50 WEST SECOND STREET, WHITEFISH, MT 59937 Name & Address County CITY OF ISPELL Street Address CURRENTLY HOA PARK B, PHASE IIIB Assessor's Tract No(s) Lot No (s) 1/4 Sec W1/2SE1/4 Section 32 Township 29 Range 21 Number of Lots or Rental Spaces 4 Total Acreage in Subdivision 1.305 Total Acreage in Lots 0.740 Minimum Size of Lots or Spaces 0.142 Total Acreage in Streets or Roads 0.0 Maximum Size of Lots or Spaces 0.240 Total Acreage in Parks, Open Spaces and,/or Common Areas 0.536 POEM)-• 1P1D7U31M";"jPBAfj- • a r • - Single Family XX Townhouse Duplex Apartment Mobile Home Park Recreational Vehicle Park Commercial Industrial Planned Unit Development Condominium Multi -Family Other • ._, �: .t.• • Roads: Gravel _ _Paved XX Curb _ _Gutter XX Sidewalks Alleys Other Water System: Individual Multiple User Neighborhood XX Public Other Sewer System: Individual Multiple User Neighborhood XX Public Other Other Utilities: Cable TV XX Telephone XX Electric XX Gas Other Solid Waste: Home Pick Up Central Storage XX Contract Hauler Owner Haul Mail Delivery: XX Central Individual School District: EVERGREEN Fire Protection: XX Hydrants Tanker Recharge Fire District: KALISPELL Drainage System: STORM DRAINS ARE ALREADY IN PLACE IN THE GLACIER VILLAGE GREENS COMPLEX. THIS SUBDIVISION WILL BE INCORPORATED INTO THE SYSTEM. F_'ROPOSED # •N/ SEDIMENTATIOCONTROL: AS THIS IS FLAT GRASSLAND, EROSION/ SEDIMENTATION SHOULD NOT BE A PROBLEM HOWEVER, SHOULD IT BE NECESSARY, ENGINEERS WILL FOLLOW THE SUGGESTED BMP'S FROM THE STATE GUIDELINES. VARIANCES: E ANY VARIANCES REQUESTED? NO (yes/no) If yes, please complete the information below: 2 SECTION /REGULATION OF REGULATIONSHARDSHIP: COMPLIANCEEXPLAIN THE HARDSHIP THAT WOULD BE CREATED WITH STRICT OF PROPOSED TO STRICT COMPLIANCES, REGULATIONS: BELOW:IrLEASE ANSWER THE FOLLOWING QUESTIONS IN THE SPACES PROVIDED 1. Will the granting of the variance be detrimental to the public health, safety or general welfare or injurious to other adjoining properties? 2. Will the variance cause a substantial increase in public costs? Will the variance affect, in any manner, the provisions of any adopted zoning regulations or Master Plan? 3. Are there special circumstances related to the physical characteristics of the site (topography, shape, etc.) that create the hardship? 4. What other conditions are unique to this property that create the need for a variance? The subdivider shall submit a complete application addressing items below to the Tri- City Planning Office at least thirty (30) days prior to the date of the meeting at which it will be heard. 1. Preliminary plat application. 2. 16 copies of the preliminary plat. 3. One reproducible set of supplemental information. (See Appendix A of Subdivision Regulations for the city where the subdivision is proposed. 4. One reduced copy of the preliminary plat not to exceed 11" x 17" in size. 5. Application fee 6. Adjoining Property Owners List (see example below): Assessor# Sec-Twn-Rn Lot/Tract No Property Owner & Mailing Address 3 I hereby certify under penalty of perjury- and the laws of the State of Montana that the information submitted herein, on all other submitted forms, documents, plans or any other information submitted as a part of this application, to be true, complete, and accurate to the best of my. knowledge. Should any information or representation submitted in connection with this application be untrue, 1 understand that any approval based thereon may be rescinded, and other appropriate action taken. The signing of this application signifies approval for the Tri-City Planning staff to be present on the perty for rou /monitoring and inspection during the approval and develop t process. ® �/ (Applicant) As approved by the CAB on 4/5/00 Effective 6/ 1/00 (Date) 0 GLACIER VILLAGE GREENS HOMEOWNER'S ASSOCIATION P.O. Box 5173 — Kalispell, MT 59901 TO: Kalispell City Council From: Jim Connolly, President, Glacier Village Greens Homeowners Association Subj: Amendment of Phase IIIA CC&R's and Platt. Based on an over 75% approval of the property owners of Glacier Village Greens (GVG) subdivision, we are asking the City Council to approve the amendment to the CC&R's and Platt of Phase IIIA of GVG. This amendment will exclude a portion of the parkland along the East side of East Nicklaus. The area is north of lot 159 Phase IIIA and south of Lot 1, Phase IX. We will then submit a preliminary subdivision for approval dividing this area into four single-family residential lots. We will enter into an agreement with a contractor, one has already expressed an interest, to build a community center on the west side of the Village, in an established common area. After completion of the center, we will exchange the four lots for the community center. The value of the community center will be equivalent to the value of the four lots. This will allow us to have a community center with no mortgage and no increase in annual dues. This is very important as we have many retired members on fixed income who would like a community center but don't want an increase in annual dues. We understand your approval of the amendment is needed before we can advance to the preliminary subdivision stage. Please consider this as the application for the amendment approval. submitted, trolly, President Village Greens Homeowners Association BOARD OF DIRECTORS Jim Connolly, President Tom Denham, Architectural Committee Pat Brown, VP and Parks & Recreation Ron Slusher, Covenants Committee Jo Mahoney, Sec(Treas & Social Committee Mark Owens & Don Pete rson, Developers GLACIER VILLAGE GREENS HOMEOWNER'S ASSOCIATION P.O. Box 5173 — Kalispell, MT 59901 Following is a series of events which led to our coming before the City Council. 1. October 2002. During the Glacier Village Greens Homeowners Board of Directors meeting the idea of a cominuuity center was raised. Tom Denham and Jo Mahoney were appointed to research the possibility. 2. After several meetings with the two appointed board members and the developer, a plan evolved which would provide the community with a center without incurring a mortgage nor increasing annual dues. Annual dues are $120.00. 3. A piece of ground designated as parkland and owned by the Homeowners Association, could be divided into four typical Village Greens lots. This land is not used as a park but is used by people nearby to walk their dogs and not pick up after them. Viewed from tlhe street it is brown fescue and looking across it is a view of Plum Creek. It would be much more eye appealing with four single family homes with attractive landscaping. 4. A ballot was prepared by an attorney after lie reviewed the CC&R's and the plat. 5. A cover letter along with a ballot and a stamped return envelope was sent to all property owners of [lie Village. A copy of these is included. 6. The ballot is a consent and amendment to be signed and returned by those in favor of changing the parkland into four single family lots to be exchanged for a completed community center. 7. May 28, 2003 the annual meting of the Homeowners Association was held and community center questions and answers were heard. 8. June 9, 2003 a special meeting of the Board was held for the purpose of certifying the ballot count. There were 236 ballots iii favor of the proposal out of a possible 312. This is over 75 % in favor. 9. By August 1, the cut off date for receiving ballots, the number had risen to 240 in favor, 77%. 10. Active opposition to the plan is from three of the six homes across the street from the park to be subdivided. When the smoke clears, they are not against the conimulvty center, but against changing the land to four lots. However 240(77%o) of our property owners want the change. 11. A question and answer sheet was recently sent to all property owners to clarify false infornnation being circulated and rumors. A copy is included. 12. We have many residents of the Village. who are on fixed 'income acid calmot afford an increase in dues. They want a coninnunity center and this is the oIily way It call be donne without an increase in dues. A fiiancial projection for the connnunity center overhead is included. These funids would come from existing annual dues, no increase to the property owner. BOARD OF DIRECTORS Jim Connolly, President Tom Denham, Architectural Committee Pat Brown, VP and Parks & Recreation Ron Slusher, Covenants Committee Jo Mahoney, Sec/Treas & Social Committee Mark Owens & Don Peterson, Developers To: Glacier Village Greens Property Owners From: Homeowners Association Board of Directors Subject: Conununity Centel - The number of i cesdents inquiring about the possibility of a conununity center has been increasing over (lie past several years to the point that the Homeowners Board appointed a committee of two, Jo Mahoney and Tom Benham, to look into the possibility. Several meetings have been held including those with the Tri-City Planning Office and the Village Greens new owners. The (ccdback lions both was extremely positive. What was needed was a way to accomplish this without putting a financial hardship on our residents. We feel this has been accomplished. Tom Sands Surveying prepared an initial subdivision of the conuuon area along the cast side of E Nicklaus just south of where it meets Iutzmau Lane. This divided very, nicely into four lots. It is being proposed to trade these lots to a contractor who will build a community center oil the conuuon area along West Nicklaus by the pond. We would then have a conununity center completely paid for, no debt to service. It is conservatively estimated that only $1.50 of the monthly $10.00 dues would be needed to cover the expenses of taxes, insurance, utilities including gas, electricity, telephone, water, sm-er and maintenance. As more lots arc approved for sale this will result in more $10.00 per mouth fees being collected and will subsequently reduce the $1.50 to something less. We anticipate that three years fi om now this amount will be less than $1.00 per month of thv, $10.00 per month dues. When you consider the benefit to the many who would use the center, this; is a very negligible aiuount. A volunteer will schedule the activity use of the center and will require a gleaning deposit in the event it is not properly cleaned after use. The deposit will then be used to.pay fora cleaning service. The center will be for the exclusive use of the residents of the village. Some of the activities could be; billiards, bingo, photography classes, quilting, card games, weddings, family reunions, wedding receptions, yoga and exercise classes, art classes, book clubs, card lessons, investment club meetings, classes on rules of golf, bible study groups, etc. We believe the center would provide at least one activity of interest to everyone in the villacc. 'J'hanks to the Cooperation of those involved we can have a community center with no additional out of pocket cost to our residents. 'Phis is a will will for all of us. Included with this letter is a ballot needing your vote to approve the center. You will also find a self addressed stninped envelope for your convenience in returning the ballot. Please vote because a non -response is file same as a no. Glacier Village Greens IJomcowncrs Association Board of Directors BOARD OF DJlWCTORS Lois Lylbrd, Pies. & Social Committee Tom Denham, Archileoural Committee ittee ►ton Slasher, V. P. & C nouns Committee Kmyl Uasser, Parks & Grounds Committee Jo Mahoney, Srct7leas. & Park Reservations Maik ()wens & I)nn Pctei;son, Uevelolleis The Board of Directors of Glacier Village Greens Homeowners Association, Inc. has reconunended that the conunon area owned by the association located north of Lot 159 in Glacier Village Greens, Phase ILIA and south of Lot I in Glacier Village Greens, Phase LY be developed into four (4) single family lots and conveyed by the Association to third parties in exchange for construction of a Community Center for Glacier Village Greens to be built elsewhere in Glacier Village Greens. The undersigned owner(s) of a lot in Glacier Village Greens hereby consent to the development of these lots and agree that the Declaration of Covenants, Conditions and Restrictions of Glacier Village Greens Subdivision (all phases) and the plat of Glacier Village Greens, Phase IIIA are amended to exclude the area described above from being conunon area or park land under the Declarations and plat. Lot & Phase No. Signature of Owner Address of Owner Print Name June 9, 2003 A special meet irtg of the GVGHOA was called to order- by Vice President, Pat Brown. Present were- 1'at Brown, Tom Denham, Mark Owens, Ron Slusher, and Jo Mahoney. 7'he board nrei and certified the ballot count regarding the proposed community center project. )ion raid names off the ballots, and Jo checked against the list of homeowners. 236 ballots have been received as of today, June 9. 234 ballots returned would be 75% of the horneownc► s balloted. It was decided (o go ahead with Sterling Title Company to amend the covenants of Phase IIIA as per ballot. (see attached). Tom Sands would be contacted to divide the laud into 4 lots. Tlie cost was estimated to be between $5000 - $7000. An appraisal will be done by two realtors, not associated with Glacier Village Greens. Pat Brown moved to proceed with Sterling Title to amend the covenants of Phase H IA, and to also hire Tom Sands to proceed with the division of the land into lots. Tony Denliam seconded the motion. Motion passed. 'nie Pall Fling will be held August 24,'2003. It was decided that NO business items would take place at that time. However, Tom would have an easel there with proposed plans for the center. The board felt that the Pall Pling should remain a social event for all homeowners. A social committee needs to be appointed. Jo would clieck into this. Meeting adjourned. espectfully submitted, ?all'ey, cc./ I rea GVGHOA FINANCIAL PROJECTION FOR '. THE COMMUMITY ENTER Present Income from $10.00/ month dues ($120.00/ yr) This represents 312 property owners There will be 35 new lots shortly at $10.00/mo Total income (broken down monthly) 2003 & 2004 (347 lots) Spring of 2005, 35 new lots will be added Anticipated duct, income in 2005 (expressed monthly) PROJECTED MONTHLY EXPENSES Assumes building completed spring 2004 2004 Taxes Insurance Electricity Gas Water Sewer Garbage TOTAL 2005 'Taxes TOTAL $3,120.00 350.00 $3,470.00 350.00 $3,820.00 none 59.00 46.00 33.00 11.00 18.00 8.30 175.30 300.00 475.30 When looking at the utilities remember that we won't be taking showers, washing and drying clothes, running a dishwasher, running a freezer in the garage, having the heat up all day long, using the oven and range most everyday. Also, these are averaged over a twelve-nnonth period. If $1.50 of the $10.00/nno. dues is allocated for the community center in 2004, anticipating completion spring 2004, (347 lots x $1.50 = $520.50). Our projected monthly expenses are only $175.00 for that period, a difference of $345.50/mo below anticipated budget. In 2005, when we start paying taxes, there will be an additional 35 dues paying lots added for a total of 382 dues paying lots. A $1.50 x 382 = $573.00 for maintenance of the community center. We anticipate expenses to be $475.30/nno or a difference of $97.70/ino under anticipated budget. Our projections can be 20% off and we will still be within budget. MOST FREQUENTLY ASKED QUESTIONS CONCERNING THE COMMUNITY CENTER Q) Where will the couunuuity center (CC) be built? A) West of the present shelter and bathroom that is on the park on West Nicklaus. The exact location will depend on soil sampling. Q) What will be built on t11c four lots on East Nicklaus? A) The ainendiuciil specifies that they will be single family dwellings as are North, Soudi wad West of the parcel. Q) I -low will construction be fimded? A) The cost of construction will be assumed by the builder. Upon completion of the CC to the satislaction of the Association Board and the Community Center Committee, the Association will trade the four lots to the builder in exchange for the Conununity Center. Q) How imich of'our annual dues will be needed to maintain the CC? A) Based on cost estimates which include taxes, insurance, utilities, garbage, approximately $1.50/mo or $18.00/yr. This amount will decrease as more dues paying lots are added by the developer. Wheu fully developed with 500 residences we anticipate approximately $1.00/itio or $12.00/yr. There would be no increase in annual dues. Q) Why can't we have the CC next to tlne.pro shop? A) T Iiis is not a clubhouse associated with the golf course. It is a conummity center for the enjoymellt of all residents. It must be built on Association property, not golf course property. Q) Wlno will have the right to use the CC? A) Any property owner of Glacier Village Greens. Q) How big will the CC be? A) The value of the lots will determine the value of the CC. The cost per square foot will tleu determine the size. This should be approximately 2500 square feet. Q) What facilities will be available in the CC? A) Tlne CC will have two restrooms and a kitchen plus a divider to make two separate rooms so two functions can go on at the same time. We will accept donations of items such as chairs, tables, etc. Q) Who will be responsible for the management and maintenance of the CC? A) The Board of Directors will establish a standing committee to oversee the CC. Q) What are the responsibilities of the CC Conunittee now? A) 17iis Committee has not mct as yet and its responsibilities will be established by Vie Board. Q) Wliat will be the parking requirements? A) Tlne city code will establish this. The requirements will conform to city code. (over) PBowe 408-7524120 Tri-City Planning And the Kalispell Planning Board 17 Second Street East, Suite 211 Kalispell, MT 59901 RICHARD DEJANA, Esq. 126N. Meridian Rd.. P. 0. Box 1757 %aAspeA MT 59903 Email rdejana@digVs.net October 28,,03 Fax 146.752-5015 _ '. % ID11 I `p N Cis CE RE: Glacier View Greens Home owners Association HOA Par'x B Phase II A, subdivision Gentlemen: I have been retained by a number of property owners in Phase III A and other members of the association. We have put a demand on the Association to rescind this attempt to remove the park. I am addressing you with respect to title issues involved in the park and recommend that because the title does not allow the conversion to housing that this subdivision be denied. Prior to arguing our position, I will recite the history of the situation with respect to the park land as I know it and the applicable law. The plat for Phase III A contains the following language: "THE HOMEOWNERS PARKLANDS SHOWN ON THIS PLAT IS INTENDED TO BE PRIVATE WALL RESPECTS. IT IS HEREBY DEDICATED FOREVER TO BE FOR THE SOLE USE OF THE OWNERS (AND THEIR SUCCESSORS ININTERFST) OF THE LOTS DESCRIBED ON THIS PLAT. AND ON FUTURE PHASES OF THIS SUBDIVISION. IT IS UNDERSTOOD AND AGREED THAT THE VALUE OF EACH LOT DESCRIBED ON THIS PLAT IS ENHANCED BY THE PRIVATE, EXCLUSIVE NATURE OF SAID PARK." Ea, -tier ±bis �,e�r the Board of r�irectors of OLA�'r�v VII,L n r_� ��rTS L.ti.i. a avi t31 L v HOMEOWNERS ASSOCIATION, INC., sent out to the members a document entitled "Consent and Amendment". The document advised that the Board of Directors had recommended that the common area owned by the association located north of Lot 159 (Phase III A) and south of Lot 1 (Phase IX) which had been parkland, be allowed to be conveyed to a third party in exchange for a community center. That document contains the following language: "The undersigned owner (s) of a lot in Glacier Village Greens hereby consent to the development of these lots and agree that the Declaration of Covenants, Conditions and Restrictions of Glacier Village Greens Subdivision (all phases) and the plat of Glacier Village Greens, Phase III A are amended to exclude the area described above from being common area or park land under the Declarations and plat. " DAGalcier Village greenslplanning board and tri city planning.wpd Page 2 of 4 The minutes of the last Association meeting reflect that approximately 77 percent of the potential owners agreed to and returned the document. Because of the details of the transaction or lack thereof as was discussed at the homeowners meeting ,approximately 25 owners rescinded their approval, but the Board of Directors would not accept the recession letters even though they were submitted within the time limit set by the board to submit the consents. The Board has now with the developer submitted this application. The language on the Plat, resulted in those persons who acquired a deed to property in this phase and in which the deed referenced the final plat of the phase, acquired an easement to use the park. In addition, those who were in other phases may have benefitted by incorporation provisions as stated on the plat. Although the Homeowners Association now owns the park, it must accept the title as received from its grantor — the Developer— and cannot challenge the title. That title is subject to the rights of the lot owners to use the property as a park. 76-3-304 MCA provides: Effect of recording complying plat. The recording of any plat made in compliance with the provisions of this chapter shall serve to establish the identity of all lands shown on and being apart of such plat. Where lands are conveyed by reference to a plat, the plat itself or any copy of the plat properly certified by the county clerk and recorder as being a true copy thereof shall be regarded as incorporated into the instrument of conveyance and shall be received in evidence in all courts of this state. Pearson v. Virginia City Ranches Ass'n, 2000 MT 12, 298 M 52, 993 P2d 688, 57 St. Rep. 65 (2000), following Missoula v. Mix, 123 M 365, 214 P2d 212 (1950), Bache v. Owens, 267 M 279, 883 P2d 817 (1994), Halverson v. Turner, 268 M 168, 885 P2d 1285 (1994), and Tungsten Holdings, Inc. v. Parker, 282 M 387, 938 P2d 641, 54 St. Rep. 399 (1997) all support the proposition that the declaration on the plat creates an easement in favor of each lot owner receiving property pursuant to the plat. Those easements are not lost by the actions of the owner of the property. These are servitudes or burdens on the property and my client are the owners of the dominant tenement or beneficiaries of these burdens. The burden to perform an obligation cannot be transferred without the consent of the beneficiary. (28-1-1002 MCA). Because actions involving real property must be in writing and no consent was given by my clients to the termination of their rights. Thus, they retain the right to use the property. As you know, the plat specifically sets out that the use is a valuable property right. By approving this plat, you are in essence diminishing that right. Such regulatory action would severely damage if not destroy this property right vested in my clients. Our Court has held that a DAGalcier village greens\planning board and fi city planning.wpd Page 3 of 4 taking occurs when there is an interference with the right to use the property without the state actually occupying the property. Howard v. St., 198 Mont 470, 647 P2d 828, 39 St. Rep. 1111 (1982). (See Also: Knight v. Billings, 197 Mont 165, 642 P2d 141, 39 St. Rep. 385 (1982)) There is no question about the fact an approval of the plat will damage my clients rights. We therefore request that this body and the City Council refrain from causing further damage to my clients and deny this application. Si,7,acer DAGalcier Village greenslplanning board and tri city planning.wpd PROTESTING MEMBERS NAME ADDRESS LOT # R. D. Christiansen 84 E Nicklaus 139 L.S. Durado 86 E Nicklaus 140 Jean Lyons 88 E. Nicklaus Fred Kirkpatrick 80 E. Nicklaus Bob Duran?o 82 E Nicklaus Ave Michael E. Hanson 134 E Nicklaus Ave Doug Nesbit 137 E Nicklaus Ave Janice Ellefson 142 E, Nicklaus Ave Francis J. Engle 135 E. Nicklaus Ave John H. Thume 130 E. Nicklaus Ave Rose V. Sweetser 131 E. Nicklaus Ave Caroline Ficken 147 E. Nicklaus Ave Jean Lockrem 108 E. Nicklaus Ave Thomas L. Caruso 108 Ritzman Bruce Tremble 151 Palmer Carl Bailey 163 Palmer John Harlow 203 W. Nicklaus Ave William McKiernan 165 W. Nicklaus Ave David R. Schultz 64 E. Nicklaus DAGalcier Village greens\planning board and tri city planning.wpd 141 137 38 Page 4 of 4 PHASE Charles A. Harball Office of City Attorney City Attorney 312 First Avenue East P.O. Box 1997 Kalispell, MT 59903-1997 Date: November 3, 2003 To: Tom Jentz, Director Tri-City Planning Office From: Charles Harball, City Attorney Tel 406.758.7708 Fax 406.758.7771 charball@kalispell.com Subject: Glacier Village Greens HOA request to convert a portion of HOA owned parklands I am in receipt of the letter you received from attorney Rich DeJana regarding his representation of the protesting homeowners who wish to restrict the conversion of the homeowner's parkland that has been proposed by the HOA. My earlier response to you regarding an amendment to the existing covenants and restrictions on the property does not change. The City must rely upon the certification of the HOA that it has followed all legal requirements to amend its CCR's. If the protesting property owners believe that the amendment was legally invalid, for whatever reason, the burden is upon them to take the matter before the District Court for that determination. The City cannot stand in the position of the District Court and make that determination for them. The issue now brought up by DeJana regarding the language on the plat — `°It is hereby dedicated forever to be for the sole use of the owners (and their successors in interest)... " — creates a more interesting question. Has something (some property right) been created by this language that cannot be extinguished or modified in any way by the owners of the property at some later date? The first question is, "What animal has been created by this language?" It seems that the language used is borrowed from language commonly used to dedicate property to public use. When property is "dedicated forever" for public use, such as for a park, must it remain in public use and as a park forever? Certainly not. There are procedures that involve public notice and input in which property that has been previously dedicated for specific public uses are taken out of public ownership and converted to private ownership. Using this "dedicated for public use" analogy tells me this specific language does not create a perpetual restriction. Tom Jentz — Glacier Village Greens November 3, 2003 Page - 2 Could it be an easement? An easement requires multiple parcels; one or more of which are benefited and one of which is burdened. We could say that the HOA owned parkland property is the burdened property and the privately owned property associated with the HOA is the benefited property. However, if we agree that this is an easement, which I believe it is not, we also have to agree that easements may be extinguished or modified according to statute. The owners of the benefited properties and the owner of the burdened property simply have to agree to the terms of the modification. What numbers are required to agree? A majority? All of them? I say you look to the document that created the entity and that would be in the CCR's or the Developer's Agreement. Rules are found there to determine exactly the numbers required to modify the easement, if it is an easement. The HOA tells us it has met these requirements. Or, is the language simply an expression of a land covenant? Given the fact that this property is owned by an HOA and came to the HOA through a Developer's Agreement and CCRs I am inclined to categorize this language as an expression of a covenant to the land. Therefore, the rules for modifying or extinguishing the covenant will be found in the Agreement or CCR document. I would guess there is nothing in that document that suggests that the covenant cannot ever be modified or extinguished. Having said all of this and determining that the restriction on the use of that property can be extinguished or modified, I am drawn back to my original point. Whether or not the process taken by the HOA to obtain homeowner approval was legally valid is not for the City to determine. The City simply seeks the certification of the HOA that it did obtain a legally valid approval of the homeowners and, as I recall, they will also need to show that they have obtained the approval of the County Commissioners as they were signatories on the original agreement. It is then up to the protesting homeowners to seek a declaratory judgment from District Court if they wish to challenge the validity of the approval. Office of City Attorney City of Kalispell •''FsNy�g:gs� n ePH Q ��:� a.3G5= sf6�Lyl�"048 p� va O y Nr cz o 3r" � .42 gg t W QI��yQ W � q�q be fa 61 ARPK a l� vrN�i f NER'S OW • .� a a 4 �l . 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