MOU/Wolford and North 93 NeighborsRTTMTMMT1 .1
Dear •r, City Manager, City Attorney and City Council
members,
On behalf • ' North 93 Neighborswe are providing
Memorandum of Understanding with Mr. Wolford that was signed
on February 13, 2007. We know that you will be considering the
Glacier Town Center Developmenta` feel that
having this agreement be helpful in yourdeliberations.
MEMORANDUMOF
This Memorandum of Understanding (MOU) is entered into between
North 93 Neighbors, Wolford Development Montana, LLC (Wolford), and the
Board of County Commissioners of Flathead County (Commissioners) for the
purpose of setting forth the terms of a preliminary agreement between the
parties which, on,the basis of the understandings set forth herein, will be
implemented through the final settlement documents.
By way of background, on December 4, 2003, North 93 Neighbors as
Plaintiffs filed a lawsuit against the Commissioners, North 93 Neighbors v. Board of
County Commissioners of Flathead County, Montana Eleventh Judicial District,
Flathead County, Cause No. DV 03-637A, alleging, inter alia, that the
Commissioners had violated the Flathead County Growth Policy, the Growth
Policy Act, Flathead County Zoning Regulations and the Montana Zoning Act in
their November 5, 2003 approval of an amendment to the Growth Policy and
their December 23, 2003 and February 4, 2004 decisions approving amendments
to the zoning regulations. Subsequently, Wolford intervened. On February 15,
2005, the District Court issued an Order and Rationale on Cross Motions for
Summary Judgment, granting summary judgment to the Defendants and against
the North 93 Neighbors, which the North 93 Neighbors appealed to the Montana
Supreme Court.
On June 13, 2006, the Montana Supreme Court issued its decision on the
appeal (North 93 Neighbors v. Board of County Commissioners of Flathead County,
2006 MT 132). The Supreme Court affirmed the District Court in part, reversed
the District Court in part, and remanded the case to the District Court to ensure
that the Commissioners fulfill their obligation to consider public comments and
incorporate them into their decision -making process.
Subsequently, the parties met in settlement conferences on December 7,
2006, January 5 and February 9, 2007 in Kalispell, Montana. At the settlement
conferences, the parties made significant progress in reaching an agreement.
The parties all understand and appreciate that the Flathead Valley, located
between Glacier National Park and Flathead Lake, is a unique and beautiful
place. The parties all value the area's amenities, including its natural beauty,
clean water and air, open space and sense of community. The parties all
understand that growth is occurring and is going to continue to occur in the
Flathead Valley but desire to preserve those amenities that have drawn people to
the Flathead Valley in the first place.
Based on the progress made at the first two settlement conferences, the
parties agreed to postpone the remand hearing originally scheduled February 1,
2007 until March 8, 2007. Wolford plans on having a public workshop with the
City of Kalispell Planning Board on February 13, 2007 to propose his revised
plans.
In light of the above recitals, the parties have agreed to proceed with the
settlement of North 93 Neighbors' lawsuit under the following terms and
schedule:
1. Agreement between North 93 Neighbors and the Commissioners
The Commissioners agree to the following changes to their procedures to
enhance and encourage meaningful public participation in government
decisions. The actual language adopted by the Commissioners may vary as
2
needed to best incorporate the items specified into the County's processes and
procedures:
a. Conduct of Meetings
The Commissioners will amend their Planning Board Rules of Procedure
to include the following procedures for public hearings. Additionally, the
Commissioners will revise their public hearing procedures to generally
incorporate the public participation opportunities provided herein.
® Public comments (anything not related to the agenda items).
• Report by staff.
® Presentation by the applicant/representative.
® Agency comments.
® Public comment. The chair will ask people to line up at the podium
if they wish to speak, and ask them to clearly state their name and
address for the record. Normally, there will be no limits on time
for each member of the public, but if there is large turnout, the
chair may, at his or her discretion, request that individuals limit
their time to three minutes. Representatives of larger organizations
may "pool" the time of members present if speaking on their
behalf. The Chair will ask for a show of hands of those desiring to
pool their time. Those members may nkprovide individual public
comment, however, they may respond to questions raised by the
:•. .
® Applicant Rebuttal.
® Staff Rebuttal.
3
• Public Rebuttal (only, at the discretion of the chair, when the
applicant, in his or her rebuttal, has raised substantial new issues or
information.)
® Board Questions.
® Motion and second.
® Board discussion.
® Action on the motion.
The Commissioners will ensure that public hearings and meetings are
handled fairly and that all parties are provided with the reasonable opportunity
to participate required by law.
b. Submittal of Written Comments.
The Commissioners will encourage members of the public, through
announcements and public notices of hearings, to submit written comment
before hearings, and in doing so, inform members of the public when such
comments would need to be received by the staff in order to ensure that copies
are provided to the decision -makers before the hearing.
C. Findings of Fact.
The Commissioners agree to develop uniform procedures for
summarizing or otherwise documenting, in writing, public comments submitted
during the public planning, zoning and subdivision processes and for
demonstrating how such public comments have been incorporated into the
decision making process.
d. Training
The Commissioners agree that fhe Commissioners will arrange for
training sessions and appropriate training materials for all public bodies in
11
Flathead County that deal with planning, zoning and / or subdivision issues in
order to educate the members of those bodies on substantive and procedural
requirements of public participation laws and public meeting requirements.
f. Online Access
The Commissioners agree to begin a process with the goal of making
documentation concerning land use issues (i.e. applications and supporting
information, staff reports, hearing notes or minutes and final decisions) available
to the public on line, as the County's financial and staffing resources permit, and
will endeavor to complete such a process within five years.
�---
2. Agreement Between Wolford and North 93 Neighbors
Wolford agrees to submit to the City of Kalispell applications for
annexation and a Planned Unit Development (PUD) for the full 485 acres of his
development, and for preliminary plat approval for a portion of the development
identified below, in the spring of 2007. The general layout and scheme of that
development are reflected in the "conceptual documents" provided to the parties
by Wolford at the February 9, 2007 meeting which are incorporated herein by
reference and as a part of this MOU. The conceptual documents will provide for
integrated design and landscaping throughout the development within its
various components (e.g. commercial, residential, mixed use, etc.), and provide
pedestrian access within and between the various components. The conceptual
documents include the following:
® "Bubble" diagram;
® Vignettes;
® Draft OCRs and Design Guidelines; and
® Schematic design studies for the Lifestyle Center.
5
The application for development will include the following elements, as
detailed in said conceptual documents:
a. Lifestyle Center as Opposed to a Traditional Mall.
i. A "Lifestyle Center" (an outdoor and pedestrian friendly shopping
district with anchor stores) as opposed to a traditional mall, on approximately
60-70 acres of his land as indicated on the conceptual documents.
ii. Wolford agrees to integrated architectural design within the
Lifestyle Center. Its architectural theme may be a rustic lodge appearance, with
details to be addressed through covenants, codes and restrictions (CCRs) and
design elements submitted as part of the PUD and the preliminary plat
application. Within the framework of integrated architectural design, it is
understood that national retailers need some flexibility to incorporate certain
design features the parameters of which shall be set forth in the PUD, CCRs and
Preliminary Plat application material.
iii. Wolford agrees that landscaping design and standards are integral
to all phases of the Lifestyle Center, and agrees to incorporate walkways,
pathways and sidewalks (conforming to City of Kalispell standards) into the
overall landscaping plan, generally as reflected in the conceptual documents,
including a meandering open space/park, the trail system, vegetation and water
features.
iv. The Lifestyle Center shall include "anchor" tenants, for example,
Dillards.
V. Wolford agrees to a phased development, that will be described in
the PUD material with the Lifestyle Center being constructed before or
concurrent with the commercial developments of "parcel X" which parcel is
2
discussed in greater detail below. To this end, Wolford agrees that he will
submit to the City the preliminary plat application, at a minimum, for the
Lifestyle Center, out parcels and park system at the time he submits the
annexation and PUD applications.
b. Out Parcels
i. Wolford will develop "out parcels" in the area west of the Lifestyle
Center and east of Highway 93 North.
ii. Out parcel buildings and surroundings will be designed to be
architecturally compatible with and complement the appearance of the Lifestyle
Center and other peripheral buildings.
iii. Buffer strips within and between out parcels will have suitable
grasses and be landscaped in a manner compatible with that of the Lifestyle
Center.
iv. Wolford agrees to a 100' landscaped set -back and trail area, with no
parking, along Highway 93 North. The set -back is measured from the right of
way line.
V. Out parcel buildings will have "four-sided" architecture, but the
parties understand that out parcels need to have features that allow businesses to
function, for example requiring areas for delivery and trash disposal.
vi. Out parcel businesses will be accessed from the interior road
system.
vii. Most out parcel lots will typically be 1.25 to 1.5 acres in size.
viii. Out parcels will be laid out in harmony with the rest of the
development in order to function in the best manner possible as a commercial
and retail area. The conceptual documents and attached vignettes show how
7
features such as buildings, roads, landscaping, and, in some areas, trails are
envisioned to be integrated.
ix. In order to achieve the above objectives for the out parcels,
appropriate design and other standards will be set forth in the PUD application,
CCRs and preliminary plat application.
C. Parcel X and Other Commercial Parcels
i. "Parcel X", comprised of approximately 30 acres on the southern
end of the development, will have development standards comparable to the
out parcels and Lifestyle Center. Parcel X will not be developed before the
Lifestyle Center, but can be developed concurrently with the Lifestyle Center.
ii. Wolford will pursue a grocery store occupant as a tenant or
purchaser for Parcel "X."
iii. Other commercial parcels will be laid out in harmony with the rest
of the development in order to function in the best manner possible as a
commercial and retail area. The conceptual documents and attached vignettes
show how features such as buildings, roads, landscaping, and, in some areas,
trails are envisioned to be integrated.
d. Traffic, Safety, Access and Interconnectivity
i. Wolford agrees to mitigate traffic safety impacts on Highway 93
North, Reserve and Whitefish Stage Road, pursuant to the traffic safety study
and the Montana Department of Transportation (MDT) requirements.
ii. The internal road system, and its interface with the external road
system (including the number of access points to Highway 93 North), will be
designed, based upon a traffic study analysis and MDT requirements, for safe
ingress and egress to and from the development.
iii. It is understood that the internal road system, including the Rose
Crossing Extension, which will be paid for by Wolford, will be designed to
mitigate traffic safety impacts by incorporating, among other things, "quieting
design" and other safety features as generally set forth in the conceptual
documents.
iv. The internal road system will, to the extent possible and as shown
on the conceptual documents, integrate into the landscaping, park and walkway
system and natural layout of the development site. Roads will be constructed on
both sides of the internal, linear park, as shown on the bubble diagram.
V. In the event that MDT does not require any improvements to
Whitefish Stage Road, Wolford agrees to construct acceleration,.deceleration and
turning lanes at the Whitefish Stage Road entrances to his development.
Additionally, Wolford agrees to improve Whitefish Stage Road between Rose
Crossing and the second entrance to the development from Whitefish Stage Road
to the south, if he is reasonably able to acquire the right of way.
e.' Protection of Water Quality
The protection of water quality is a value all parties agree on. Wolford
will hire hydrologist Roger Noble, or in the event of his unavailability, another
professional mutually agreeable to the parties, to analyze water quality issues
and to prepare a storm water management plan.
f. Community Facilities
i. Wolford has agreed that a substantial feature of the development
shall be public parks, linear parks and / or public walkways, with a park of
approximately'25 acres located near the center of the development (the "central
park").
Oj
ii. North 93 Neighbors requested that Wolford consider in his design
plans a designation of land for a community facility for use by the public.
Wolford has generously agreed to donate a 5-acre parcel of land adjacent to the
central park for a community facility as shown in the conceptual documents.
This offer to donate is to remain open for a period of five years from final plat
approval during which North 93 Neighbors, in consultation with the governing
body, will identify a suitable non -governmental non-profit entity to acquire and
build on the site. It is contemplated that this parcel will not be used for public
infrastructure such as a fire station, police station, etc. If no such entity is
identified during the five-year period, then the offer expires. In mutual
consultation leading up to the final settlement, North 93 Neighbors and the
governing body will further define the public facilities that will qualify for
acquisition of and construction on the parcel and outline in more detail the
nature of this donation to ensure, among other things, Wolford's ability to obtain
a tax benefit, if possible.
g. Housing
i. The development will include approximately 70 acres for single-
family homes and 20 acres for multi -family homes.
ii. The housing development will be a mixed -use and mixed -income,
market driven, approach, assuring that a certain amount of the housing will be
available to people from a variety of income levels wishing to locate near this
vibrant area centered around the Lifestyle Center, and will include a significant
level of housing directed at the lower end of the market while being developed
in a quality manner.
h. Secondary Entrances
10
At the Whitefish Stage Road and West Reserve Drive entrances,
Wolford agrees to a 50 foot landscaped buffer in order to visually enhance and
coordinate the entrances to the development.
ii. The commercial tract as shown in the conceptual documents, at the
proposed intersection of Whitefish Stage Road and the new Rose Crossing
Extension, will be designated "neighborhood commercial" through the PUD
process which tract is intended to meet immediate local needs, as opposed to
serving as a destination shopping center.
3. Severability
The parties hereto intend the performance of the agreement between
North 93 Neighbors and the Commissioners as set forth in Sections 1 and 4 (d) is
severable from the fulfillment of this MOU between Wolford and North 93
Neighbors as set forth in Section 2.
4. Implementation
a. Hearing
The parties agree to jointly request that the Court continue the March 8,
2007 hearing until after July 1, 2007, following the target date for submittal of the
application for Annexation, the PUD application and CCRs as set forth below,
and further agree to provide the Court with a joint progress report by May 15,
2007.
b. Joint Press Release
The parties will jointly prepare and issue a joint press release on or before
February 13, 2007 to announce the parties' preliminary agreement and MOU,
and to unveil Wolford's revised plans to the public and local governments.
11
C. Application to City of Kalispell
Wolford agrees to apply to the City of Kalispell for annexation, a PUD and
preliminary plat approval by approximately July 1, 2007, and North 93
Neighbors agrees to support Wolford's applications for annexation, PUD and
preliminary plat approval to the City of Kalispell. Prior to the formal submittal
to the City, Wolford agrees to keep North 93 Neighbors apprised of the progress
of talks concerning the application with. the City, and will promptly notify North
93 Neighbors of any feedback from the City regarding any problems or issues the
City has with any aspects of the proposal that would frustrate the objectives
expressed by the parties in this MOU.
The parties recognize that the City of Kalispell may, in its final approval of
Wolford's application, cause some development aspects expressed in this-MOU
to be changed. Wolford and his agents will use their best efforts so that any final
approval, as closely as possible, is consistent with this MOU.
d. Action by Commissioners
The Commissioners agree that they will adopt a package of public
participation procedures in conformance with numbered paragraphs 1(a) — (f) of
this Agreement prior to the date Wolford submits his application materials to the
City of Kalispell.
e. Final Settlement Agreement
The parties agree that the applications for annexation, PUD and
preliminary plat approval shall be incorporated into a final settlement agreement
The parties shall sign the final settlement agreement prior to Wolford submitting
his application for annexation, PUD and preliminary plat approval to the City.
f. Dismissal of Lawsuit
12
North 93 Neighbors agrees that once the final settlement agreement has
been entered into between North 93 Neighbors and Wolford and the application
for annexation, PUD and preliminary plat approval submitted to the City, they
will dismiss the lawsuit with prejudice.
g. County Contingency
The parties agree that if annexation, PUD approval and preliminary plat
approval are rejected by the City or otherwise prevented from timely
implementation, then Wolford, if he chooses to proceed with the development,
will submit the same, or substantially the same, application to Flathead County.
North 93 Neighbors and Wolford agree in that event to encourage the City to
allow a special annexation district to provide sewer.services to the site. If an
application to Flathead County is necessary, Wolford may structure the
submission into separate applications, so long as the separate application parts
are the same or substantially the same as the corresponding parts of the
submittal earlier made to the City of Kalispell, including landscape buffering and
trail system components, and the initial application to the County includes the
linear park and "central park." The parties recognize that the present County
zoning may facilitate some, but not all, of the project envisioned in the
conceptual documents, so application(s) to amend county zoning are anticipated,
either with the first or later applications made to Flathead County.
h. Good Faith.
The parties agree to work together with good faith and mutual respect to
meet the objectives of this MOU and to ultimately enter into a final settlement
agreement.
13
Facsimiles and Counterparts
The parties agree that a facsimile copy of this Agreement containing the
signature of any party shall be accepted as the original. This Agreement may be
executed in one or more counterparts, which taken together shall constitute one
and the same document.
DATED THIS DAY OF )3t^L4 a 2007
NORTH 93 NEIGHBORS
BY: C��— k ��-
Its President
14
DATED THIS �� DAY OF ,2007
WOLFORD DEVELOPMENT MONTANA, LLC
BY: �'
Buc olfor
15
DATED THIS DAY OF �� 2007
BOARD OF CO ISSIONERS OF FLATHEAD COUNTY
r
BY: ---f'�
Alan F. Mc ormick, legal cotmsel to the Board of Commissioners
15