Loading...
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