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Kalvig letter to CouncilKALVIG & LEDUC, P.C. ATTORNEYS AT LAW JOHN B. DUDIs Southfield Tower P.O. Box 1678 BRUCE A. FREDRICKSON* KALISPELL, MT 59903 KEN A. KALVIG 1830 3,d Avenue East, Suite 301 PHONE: 406-257-6001 Kalispell, MT 59901 FAX: 406-257-6082 MARSHALL MURRAY ALL ATTORNEYS LICENSED IN MT (Retired) W ALSO LICENSED IN NORTH DAKOTA April 10, 2013 Via Hand Delivery Hon. Tammi Fisher & City Council City of Kalispell 201 1 sI Avenue East Kalispell, MT 59901 Our Client: Montana Venture Partners, LLC Re: Gardner/VW 2-Lot PUD Zoning Application Dear Mayor Fisher and City Council Members: I represent Montana Venture Partners, LLC ("MVP"), developer of the Old School Station industrial and technology park, who wishes to comment on the above -referenced zoning application. Thank you for the opportunity to do so. MVP submitted written comments and materials to the Kalispell Planning Board for its review during the public hearing held on March 12, 2013. We have been informed by the City Clerk that a copy of those materials, which consisted of a 34" binder ("Planning Board Binder"), has been provided to the City Council for its review. The written materials contained substantial information and commentary relevant to the GardnerNW PUD Application. I do not believe the planning office or planning board fully grasped the relevance and importance of the materials, so I ask you to carefully and thoughtfully review it all. Along with this letter, I am submitting some additional information in a separate (and thankfully smaller) binder, the cover of which indicates the material is submitted to the City of Kalispell in connection with an April 15, 2013 City Council Meeting ("Supplemental City Council Binder"). Although the material is thick in volume, it all relates to a handful of primary issues, I hope to adequately point out to you in this cover letter. I have highlighted certain material in the binders that is of particular relevance to the issues MVP raises, which will help with your review. The Gardner/VW 2-Lot PUD does not comply with Kalispell's PUD Zoning Regulations April 10, 2013 Page 2 of 4 At Tab 19 of the Planning Board Binder, I provided a copy of those portions of Kalispell's PUD Zoning Regulations ("PUD Regulations") addressing the PUD application and the Planning Board's role in review of it. Based upon my review of Section 27.19.020(3)(e) and other subsections, it is clear the PUD application does not comply with the PUD Regulations. In particular, the application does not contain "proposed plans for handling" sewage disposal, water supply, storm water drainage, landscaping, vehicular traffic, pedestrian traffic, and signage, among other things. The PUD Regulations state the application "shall" contain that information. Nearly all of these deficiencies for the first 2 lots are identified in numbered paragraphs 8, 9, 10, 11, 12, 13 & 14 found on pages 17-18 of Staff Report #KPUD-13-01 dated March 6, 2013. The planning office appropriately points out the importance of addressing those issues, but mistakenly suggests the applicant should provide that information prior to the issuance of a building permit, which review would be done after the City Council has approved the PUD zoning and the public review and comment process has closed. Prior to the issuance of the staff report, planning staff also noted these and other deficiencies. See, Tabs 14 & 17 of the Planning Board Binder. The PUD Regulations plainly require the applicant to provide those plans with the PUD application, which entitles the public, including my client, the opportunity to fully review and comment on them. Of particular importance to my client is how sewer and water are being provided to the site, the applicant has proposed no plans for sewer and water, and my client has been denied its ability to participate in the PUD review process. In my review of the PUD Regulations and how the present application fails to comply therewith, all found at Tab 19 of the Planning Board Binder, I highlighted particular provisions in the regulations and offered written comments at the right-hand side of the page. My written comments point out where the 2-lot PUD falls short of meeting the PUD Regulation requirements. The Planning Board did not address these written comments; neither did the planning staff in the March 26, 2013 Memo from Sean Conrad, found at Tab 32 of the Supplemental City Council Binder. The planning office's justification for not addressing my comments seems to be that they view the Gardner/VW PUD as small in size and scope so this PUD will be held to a different standard. In reality, the Gardner property covered by the PUD Placeholder is approximately 80 acres, nearly double the size of Hutton Ranch, and the B-5 zoning allows all the same commercial uses and more that were allowed and have developed in Hutton Ranch. I have recopied for you the PUD Regulations and my comments about the Gardner/VW PUD not meeting them, all of which is found at Tab 36 of the Supplemental City Council Binder. Gardner PUD area needs to connect to the Old School Station water and sewer Due to the lack of proposed plans for handling sewer and water to the Gardner property, MVP has been in the dark about how it will be provided, but has heard from various sources that these two lots and other portions of the Gardner property will not connect to the Old School Station lines. If true, this creates potentially two problems for MVP and the City of Kalispell. First, at the City's requirement, MVP increased the size of its water and sewer lines at substantial cost, so those lines would have capacity to serve property south of Cemetery Road and beyond, and MVP, pursuant to its Latecomer's Agreement with the City of Kalispell, gets that additional expense reimbursed through the utility service of new development. Second, the City of Kalispell has repeatedly made it clear that the Old School Station water and sewer infrastructure was put it April 10, 2013 Page 3 of 4 and oversized so that it would be used by property developing south of Cemetery Road. This position has been reiterated in studies done in connection with the planning for the Old School Station lines, the Kalispell Growth Policy, the staff reports prepared for the Gardner and Siderius Annexations, in a pamphlet prepared by the City regarding latecomer agreements, and in statements made by City Council members. See, Tabs 2-6 & 8 of the Planning Board Binder and Tabs 26, 29-30 of the Supplemental City Council Binder. The planning board did not want to get into the issue of the latecomer contract at all, but it is relevant in this PUD review process. MVP and the City need to be told what the applicants' plans are for sewer and water. If there are alternative ideas, some of which would result in the City not charging latecomer fees to development on the Gardner property, then MVP wholly would object to such proposed plans and the City's interpretation of its commitment to MVP. MVP and the City have a right to and need to know how water and sewer service will be provided to these first two lots and to all the Gardner property. I completely disagree with the planning office's assertion that the only thing the Planning Board and the City Council needs to know is that utilities are available and there is capacity. More than that is required in a PUD. When the Hutton Ranch and Startling PUDs were proposed, those developers provided drawings and reports that discussed and showed how and where the PUD property would connect to the City's existing infrastructure. This information was given for the first and subsequent phases of those projects. Anyone looking at that information would immediately and easily know what the proposed plans for sewer and water were. Hutton Ranch for example, shows how lines from particular buildings will connect to the City infrastructure. See Tabs 33-35 of the Supplemental City Council Binder. Kalispell needs to follow through with its promises and commitments made to MVP, that as property along the Highway 93 South Corridor develops, it will utilize the Old School Station lines and contribute toward reimbursement for those lines. MVP will support development along the Highway 93 South Corridor and understands why the City would welcome working with the Gardner family. MVP has also been an important partner with the City, as evidenced by its public/private partnership on the oversized Old School Station infrastructure. It is important that it continues to receive from the City the support and assistance it needs to recoup the cost of its infrastructure investment. Approval of the 2-lot PUD application sets bad precedent and sends the wrong message The City Council needs to carefully and wisely consider the 2-lot PUD application. As stated above and shown in the submitted materials, the applicant has not submitted an application that complies with the PUD zoning regulations for these first two lots. A further problem with the application is that it does not adequately address future phasing, which is an important element of a PUD. The Planning Board and City Council extensively discussed the importance of phasing and the conceptual (at a minimum) information that needs to be provided about future phases when the PUD regulations were amended in 2008, creating the PUD Placeholder concept. Members of the Planning Board expressed concern about the amount of information that would be provided at the outset of a PUD when a placeholder was established. See, Tab 10 of Planning Board Binder. April 10, 2013 Page 4 of 4 Councilman Hafferman initiated a lengthy discussion about the amount of information that would be provided regarding future development after the initial phase. See, Tab 27 of the Supplemental City Council Binder. In that discussion, and in earlier statements made to the planning board and in the staff report regarding the proposed amendments to the PUD zoning regulations, Planning Director Tom Jentz, repeatedly assured everyone that a PUD applicant would need to provide at least a minimal level of information about future development, just as developers in the past have been required to do. He specifically calls out the Starling PUD as an example the Council was particularly pleased with and he assured the Council that the changes to the PUD regulations were only making the PUD regulations consistent with how the City had processed PUDs in the past. See, Tabs 9 & 10 of the Planning Board Binder; see also, Tabs 27 & 29 of the Supplemental City Council Binder. At Tabs 22-24 of the Planning Board Binder, we submitted material from the Starling, Hutton Ranch, and Valley Ranch PUDs as examples of the standards PUDs have been held to in the past. The GardnerNW PUD looks nothing like these examples. If the current PUD regulations were written to ensure that what was done in the past with PUDs will also be done in the future, something has gone terribly wrong. At Tab 21 of the Planning Board Binder, Bruce Lutz succinctly points this out. I believe this may be the first PUD to be developed in a PUD Placeholder area. If this application, in its present form, is approved, it establishes precedent for what all future PUD applicants will expect and demand. It would be arbitrary and capricious for the City to not treat everyone else in the future the same. If one PUD developer is allowed to not meet the terms of the regulations or ignore future phasing, then they all must be allowed to do it. Imagine if Phil Harris of Hutton Ranch was coming to you at this time with an application for just a movie theater and presented no plans for the remainder of his property. Gardner's property is larger than Hutton Ranch. Finally, and in closing, Kalispell must stand by the private developers that have invested in over -sizing the City's infrastructure. If the City does not, then what developer in the future would be willing to advance such costs. I intend to be at the City Council meeting when this topic comes up and will be available to offer further comment and answer any questions you have. Sincerely, Ken A. Kalvig ken@kalviglaw.com cc: Montana Venture Partners, LLC Enc. Bound written comments submitted as public comment for City Council meeting on or about April 15, 2013 on Gardner/VW 2-Lot PUD Zoning Application