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5. Resolution 4865 - Preliminary Plat - Orchard VillageTri-City Punning Office 17 Second Street East --- Suite 211 Kalispell, Montana 59901 Phone: (406) 758-1850 Fax: (406) 751-1858 tricity*a centurytel.net www.tricitypianning-mt.com REPORT TO: Kalispell Mayor and City Council FROM: Narda A. Wilson, Senior Planner Chris A. Kukulski, City Manager SUBJECT Orchard Village Subdivision Preliminary Plat - South Side of Appleway Drive MEETING DATE: March 1, 2004 BACKGROUND: This is a request by Orchard Village LLP for preliminary plat approval of a 14-lot residential subdivision on approximately 3.18 acres in the west part of Kalispell. Each of the 14 lots would be developed with a four-plex apartment building. There would be a total of 56 dwelling units within the site once fully developed. The apartment buildings and the "sublots" being created would be individually owned while the parking, access, recreational area and landscaping would be commonly shared, owned and maintained. It is anticipated by the developers that the property would likely be developed in two phases that would be completed over a two or three year period. The property lies on the south side of Appleway Drive and has been used in the past for a residence and vintage automobile storage yard. The property has essentially been cleared of the accumulated vehicles and other items. The property was annexed into the city in June of 2003 with and given a zoning designation of B-2, General Commercial. It has been the intent of the owners to develop this property with multi -family dwellings which are listed as a permitted use in the B-2 zoning district. This will not be Section 8 housing as initially stated in the application. The Kalispell City Planning Board held a public hearing regarding this matter at their meeting on February 10, 2004. The applicants spoke in favor of the proposal and noted that this was the intention all along to develop this property. The apartments are in response to the local market and will provide an important element in the housing inventory. They noted that this will be centrally located and provide some good housing alternatives. There were two property owners from the immediate neighborhood who spoke at the hearing stating they really had no problems with the project but were concerned about traffic impacts to the roads in the area. The planning board discussed the issues related to density and traffic including the location of the Kalispell Bypass to the crest and the traffic problems along Meridian Road. A motion was made and passed on a unanimous vote to forward a recommendation that the Kalispell City Council approve the preliminary plat subject to the recommended conditions as amended. Providing Community Planning Assistance To: • City of Kalispell • City of Whitefish • City of Columbia Falls Orchard Village Subdivision Preliminary Plat February 25, 2003, 2003 Page 2 When the Site Development Review Committee reviewed this project, they included a recommendation that sidewalks and a landscape boulevard be installed along this frontage of this property. The developer does not have a conflict with this condition and is aware of the situation. This condition of approval was inadvertently omitted from the original staff report, but has been reinstated in the recommendation to the Kalispell City Council RECOMMENDATION: A motion to adopt the resolution approving the preliminary plat subject to conditions would be in order. FISCAL EFFECTS: ALTERNATIVES: Respectfully submitted, zl z Narda A. Wil on Senior Planner Minor positive impacts once fully developed. As suggested by the city council. Report compiled: February 25, 2004 c: Theresa White, Kalispell City Clerk Chris A. Kukulski City Manager Attachments: Transmittal letter Staff report #KPP-04-1 and application materials Draft minutes from 2/ 10/04 planning board meeting TRANSMIT\ KALISPEL\ 2003 \KPP03-6.MEMO RESOLUTION NO. 4865 A RESOLUTION CONDITIONALLY APPROVING THE PRELIMINARY PLAT OF ORCHARD VILLAGE, MORE PARTICULARLY DESCRIBED AS ASSESSOR'S TRACT 15 LOCATED IN SECTION 13, TOWNSHIP 28 NORTH, RANGE 22 WEST, P.M.M., FLATHEAD COUNTY, MONTANA. WHEREAS, Orchard Village LLP, 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 February 10, 2004, on the proposal and reviewed Subdivision Report #KPP-04-1 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 Orchard Village, subject to certain conditions and recommendations, and WHEREAS, the City Council of the City of Kalispell at its regular Council Meeting of March 1, 2004, reviewed the Tri-City Planning Office Report #KPP-04-1, 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-04-1 are hereby adopted as the Findings of Fact of the City Council. SECTION II. That the application for Preliminary Plat approval of Orchard Village, Kalispell, Flathead. County, Montana is hereby approved subject to the following conditions: 1. That the development of the site shall be in substantial compliance with application submitted, the site plan, covenants, elevation drawings, materials and other specifications as approved by the city council. (Kalispell Subdivision Regulations, Appendix C --- Final Plat) 2. That the plans and specifications for all public infrastructure be designed and installed in accordance with the Kalispell Design and Construction Standards and a letter shall be obtained stating that they have been reviewed and approved by the Kalispell Public Works Department. (Kalispell Subdivision Regulations, Chapter 3, Design Standards, Section 3.01). 3. Minimum fire flows shall be in accordance with Uniform Fire Code (1997) Appendix In -A. Fire hydrants shall be provided per City specifications at locations approved by this department prior to combustible construction. All house numbers shall be visible from the driveway entrance and clearly posted on each of the buildings. (Kalispell Subdivision Regulations, Section 3.20). 4. That a letter be obtained from the Kalispell Parks and Recreation Department stating that the landscape plan has been reviewed and approved for the placement of trees and landscaping materials within the development. (Kalispell Subdivision Regulations, Section 3.11). That the approximately 0.389 acre area designated on the plat as "park" shall be developed to provide recreational amenities and shall be privately owned an maintained. This park area satisfies the parkland dedication requirements. (Kalispell Subdivision Regulations. 3.19). 6. The internal road within the parking lot shall be signed in accordance with the policies of the Kalispell Public Works Department and the Uniform Traffic Control Devices Manual and be subject to review and approval of the Kalispell Fire Department. (Kalispell Subdivision Regulations, Section 3.09). 7. The developer shall provide a letter from the U.S. Postal Service approving the plan for mail service. (Kalispell Subdivision Regulations, Section 3.22). Street lighting shall be located within the subdivision and shall be shielded so that it does not intrude unnecessarily onto adjoining properties. (Kalispell Subdivision Regulations Section 3.09(L)). 9. All utilities shall be installed underground. (Kalispell Subdivision Regulations, Section 3.17). 10. That issues related to the 100 year floodplain that lies to the west be adequately addressed prior to construction on Lot 14 in the southwest quadrant of the site. (Kalispell Subdivision Regulations, Section 3.05). 11. That sidewalks be placed on the south side of Appleway Drive that area minimum of five feet wide and separated by a .minimum five foot landscape buffer. Placement of street trees and landscape materials shall be coordinated with the Kalispell Parks and Recreation Director. (Kalispell Subdivision Regulations, Section 3.11) 12. That a provision be made for the use and maintenance of common elements within the subdivision by way of a maintenance agreement or within the covenants for the subdivision. 13. That a minimum of two-thirds of the necessary infrastructure for this subdivision shall be completed prior to final plat submittal. 14. All areas disturbed during development of the subdivision shall be re -vegetated. with a weed - free mix immediately after development. 15. That preliminary plat approval shall be valid for a period of three years from the date of approval with an automatic two-year extension as each phase of the subdivision plat has been completed and fled. (Kalispell Subdivision Regulations, Section 2.04). SECTION I71. 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 I ST DAY OF MARCH, 2004. 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 tricitv(i�.centurytel.net www.tricityplanning-mt.com February 25, 2004 Chris Kukulski, City Manager City of Kalispell P.O. Box 1997 Kalispell, MT 59903 Re: Orchard Village Subdivision Preliminary Plat Approval Dear Chris: The Kalispell City Planning Board met on February 10, 2004 and held a public hearing to consider a preliminary plat approval of a 14-lot residential subdivision on. approximately 3.18 acres in the west part of Kalispell. The property lies on the south side of Appleway Drive and has been used in the past for a residence and vintage automobile storage yard. Narda Wilson representing the Tri-City Planning Office, presented staff report KPP-04- 1 explaining that each of the 14 lots would be developed with a four-plex apartment building. There would be a total of 56 dwelling units within the site once fully developed. The apartment buildings and the "sublots" being created would be individually owned while the parking, access, recreational area and landscaping would be commonly shared, owned and maintained. It is anticipated by the developers that the property would likely be developed in two phases that would be completed over a two or three year period. The property has essentially been cleared of the accumulated vehicles and other items. The staff recommended approval of the subdivision subject to the listed conditions. At the public hearing, the applicants spoke in favor of the proposal and rioted that this was the intention all along to develop this property and the apartments are in response to the local market and will provide an important element in the housing inventory. They noted that this will be centrally located and provide some good housing alternatives. There were two property owners from the immediate neighborhood who spoke at the hearing stating they really had no problems with the project but were concerned about traffic impacts to the roads in the area. The planning board discussed the issues related to density and traffic including the location of the Kalispell Bypass to the west and the traffic problems along Meridian Road. A motion was made and passed on a unanimous vote to forward a recommendation, that the Kalispell City Council approve the preliminary plat subject to the recommended conditions as amended. Providing Community Planning Assistance To: • City of Kalispell • City of Columbia Falls • City of Whitefish • Orchard Village Subdivision Preliminary Plat February 25, 2004 Page 2 Please schedule this matter for your next available city council meeting. You may contact this board or Narda Wilson at the Tri-City Planning Office if you have any questions regarding this matter. Sincerely, Kalispell City Planning Board George Taylor President GT/ sm Attachments: Exhibit A - Recommended conditions of approval Staff report #KPP-04-1 and application materials Draft minutes 2/ 10/04 planning; board meeting c w/ Att: Theresa White, Kalispell City Clerk c w/o Att: Orchard Village LLP, P.Q. Box 7505, Kalispell, MT 59904 Montana Mapping Assn., 115 Valley View Dr., Kalispell, MT 59901 Blend Design & Build, P.O. Box 7505, Kalispell,MT 59937 Orchard Village Subdivision Preliminary Plat February 25, 2004 Page 3 EXHIBIT A TRI-CITY PLANNING OFFICE STAFF REPORT #KPP-04-1 ORCHARD VILLAGE SUBDIVISION PRELIMINARY PLAT CONDITIONS OF APPROVAL AS RECOMMENDED BY THE KALISPELL CITY PLANNING BOARD FEBRUARY 25, 2004 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 February 10, 2004 That the development of the site shall be in substantial compliance with application submitted, the site plan, covenants, elevation drawings, materials and other specifications as approved by the city council. (Kalispell Subdivision Regulations, Appendix C - Final Plat) 2. That the plans and specifications for all public infrastructure be designed and installed in accordance with the Kalispell Design and Construction Standards and a letter shall be obtained stating that they have been reviewed and approved by the Kalispell Public Works Department. (Kalispell Subdivision Regulations, Chapter 3, Design Standards, Section 3.01). 3. Minimum fire flows shall be in accordance with Uniform Fire Code (1997) Appendix III -A. Fire hydrants shall be provided per City specifications at locations approved by this department prior to combustible construction. All house numbers shall be visible from the driveway entrance and clearly posted on each of the buildings. (Kalispell Subdivision Regulations, Section 3.20). 4. That a letter be obtained from the Kalispell Parks and Recreation Department stating that the a landscape plan has been reviewed and approved for the placement of trees and landscaping materials within the development. (Kalispell Subdivision Regulations, Section 3.11). 5. That the approximately 0.389 acre area designated on the plat as "park" shall be developed to provide recreational amenities and shall be privately owned an maintained. This park area satisfies the parkland dedication requirements. (Kalispell Subdivision Regulations. 3.19). 6. The internal road within the parking lot shall be signed in accordance with the policies of the Kalispell Public Works Department and the Uniform Traffic Control Devices Manual and be subject to review and approval of the Kalispell Fire Department. (Kalispell Subdivision Regulations, Section 3.09). 7. The developer shall provide a letter from the U.S. Postal Service approving the plan for mail service. (Kalispell Subdivision Regulations, Section 3.22). Orchard Village Subdivision Preliminary Plat February 25, 2004 Page 4 8. Street lighting shall be located within the subdivision and shall be shielded so that it does not intrude unnecessarily onto adjoining properties. (Kalispell Subdivision Regulations Section 3.09(L)). 9. All utilities shall be installed underground. (Kalispell Subdivision. Regulations, Section 3.17). 10. That issues related to the 100 year floodplain that lies to the west be adequately addressed prior to construction of Lot 14 in the southwest quadrant of the site. (Kalispell Subdivision Regulations, Section 3.05), 11. That a note be placed on the face of the final, plat that waives protest to the creation of a special improvement district for the future upgrade of Appleway Drive. 12. That a provision be made for the use and maintenance of common elements within the subdivision by way of a maintenance agreement or within the covenants for the subdivision. 13. That a minimum of two-thirds of the necessary infrastructure for this subdivision shall be completed prior to final plat submittal. 14. All areas disturbed during development of the subdivision shall be re -vegetated with a weed -free mix immediately after development. 15. That preliminary plat approval shall be valid for a period of three years from the date of approval with an automatic two-year extension as each phase of the subdivision plat has been completed and filed. (Kalispell Subdivision Regulations, Section 2.04). REPORTS \ KALI SPELL \ KPP04-1. D O C ROLL. CALL The motion passed unanimously on a roll call vote, with [ Anderson being recused. ORCHARD VILLAGE A request by Orchard Village LLP for preliminary plat PRELIMINARY PLAT i approval of a 14-lot residential subdivision on approximately APPROVAL REQUEST 3.18 acres located on the south side of Appleway Drive and one -quarter mile east of Highway 2 on property zoned B-2, General Business in the City of Kalispell. STAFF REPORT I Narda Wilson, with the Tri-City Plaxl g Office, gave a #PP-t}4-1 presentation of Staff Report KPP-04-1, a request for preliminary plat approval of a 1.4-lot residential subdivision on approximately 3.18 acres located on the south side of Appleway Drive and one quarter mile east of Highway 2 on property zoned B-2, General Business in the City of Kalispell. Wilson stated the property was recently annexed to the city of Kalispell, and is just over three acres in size and lies on the south side of Appleway Drive. She said it was annexed with the intent to develop it for apartment use and the developer is creating 14 sublots; each sublot would contain a four unit apartment building, or 56 units in total. She said that each sublot would be individually owned, but that the parking, access, recreational areas and landscaped areas would be commonly owned and maintained, with each owner of the sublots paying into an association for maintenance of the common areas. She said the property was used as a residence in the past by the Getz's, as a "vintage automobile storage yard", but that it has been cleaned up nicely. Wilson stated the property was annexed in June 2003, and the developers have been focused an getting the project before the board. She said the surrounding land use is an area in transition, with a mix of uses, mostly residential. She said the United Way is to the west, with some single family homes to the north, annexed and zoned B-2, and to the south are the railroad tracks, with Rails to Trials to the mm iediate south of he properi.lT. Wilson explained that water and sewer will be extended to the site_ There will be two accesses onto Appleway Drive and a fire access road will be created to the south which creates a loop, which %vill be unproved with asphalt, concrete, or grass crete. She stated the Kalispell Fire Department has no preference, as long as a fire truck will be supported, and they will work with the developers for fire hydrant locations. Wilson said the developers will need to provide fire access orior to combustible construction on the site. She also said there may be a dood plain issue on the site, because Ashler Creels lies to the west about 73 feet, and it is in a nondeliniated area of the 100 year flood plain.. 'f'_riere is quite a bit of difference in eievation between the property and The iaiisme t C',iv''lannin, Board `limaes of1he ,meting: of February ; 0_ _'004 creek though and doesn't think the property will be effected by the floodplain. She stated that an engineer for the developer is working with the State will determine a base flood elevation for the property. Wilson said that all of the storm water will be required to be maintained, retained, or detained on -site, with an engineered management plan coordinated with Public Works, and that part of the park play area may be used. She said this property is subject to the parkland dedication requirements, which would be 11% or 0.346 acres of land, and the plans call for park land in the amount of 0.389 acres of land, which will be developed with amenities and located adjacent to Rails to Trails. Wilson explained that the subdivision complies with the Kalispell Growth Policy, which anticipates development as commercial including a mix of other uses, and is consistent with the anticipated impacts. She said the density is consistent with B-2 zoning, with an average of 9900 square feet per lot and complies with subdivision regulations. She said the staff recommends adoption of the staff report and approval subject to the listed conditions, which are fairly standard, except for the flood plain and the possibility of a special improvement district for Appleway Drive. PUBLIC BEARING The public hearing was opened to those who wished to speak on the issue. APPLICANT/AGENCIES Michael Blend, 1069 North Meridian, stated he is one of four partners in Orchard Village LLP. He said there will be 14 four plex buildings. These apartments would not qualify for Section 8 housing. Each of the units will be owned and rented by one partner, and they anticipate a two to two and a half year build out. Blend stated the property was ideal, with close proximity to shopping and jobs, and they anticipate a high demand for the apartments. He said the units will be positioned around the park and play area, with Grass Pave used for the fire access. He said they will try to retain as many of the existing trees and bushes as possible and will plant shrubs, trees and grass between the buildings and use landscaping bark. He said the yard bins would be supplied by Evergreen Disposal and would be enclosed and accessible. He said they will establish an owner's association, which will be responsible for common area maintenance and that each lot owner has a 1 / 14th undivided interest in the common area. He stated they designed the building in a pinwheel fashion, which will maximize privacy and create an attractive design from all angles, and that all main floor units will be handicapped accessible and adaptable. He said he believes the development will fill a need in the community for people who rest, with clean quality apartments in a convenient Kalispell City Planning Board Minutes of the sheeting of February 10, 2004 Page 5 of 8 location. John Schwartz, Schwartz .Engineering, spoke on the floodplain issue. He said that FEMA has evaluated Ashley Creek to the south of this property, and found that the base flood elevation is approximately 14 feet above the channel elevation of the creek. He believes the site is well out of the floodplain. He explained for clarity on Condition 10, only lot 14 (southwest corner) is located lower than the others, and the rest of the lots are at 29.59 feet and above. He said that one option would be to isolate it as Lot 14 and mitigate it by using f 11 to place the building at 29.59 feet, so they would be above the parking lot. He said the storm drains would be retained on site in a pond and will be ultimately released into Ashley Creek after treatment. PUBLIC COMMENT Dave Duvall, 15 Appleway Drive, said that he has lived next door to the property for over 30 years, and that it was not in the floodplain; the property used to be have irrigation ditches which ran through his pasture. He said he wondered how the development would affect his property, and is concerned about traffic impacts, but otherwise has no problem with the proposal. David Graham, 128 West Bluegrass Drive, stated he is a participant and partner in the project and sees an increasing demand for multi -family apartment units. He said he wants strong covenants and community involvement in the subdivision, and they would do whatever it takes to make Lot 14 buildable. He said they want to make the property a nice area, with staggered building sites, and have it be a plus to the community. Nancy Kostman, 1331 2nd Street West, Montana Forest ProdLts, on the south side of the project, stated we need this kind of living space in the area, but is concerned about the Meridian Road and Appleway Drive intersection, which is a nightmare. She said she is concerned that their site will become an attractive nuisance with more people cutting through the mill site from Rails to Trails, but that it looks like a very nice development. No one else wished to speak and the public hearing was closed. MOTION ? Norton moved and Hinchey seconded to adopt staff report KPP-04-1 as findings of fact and, based on these findings, recommend to the Kalispell City Council that preliminary plat approval for a 14-lot apartment complex be given to j Orchard Village subject to the 15 listed conditions. Kalispt l (:;ty Planning Board Nunn€es oftite meeting «( l,ebrnary ' 0- 2U04 BOARD DISCUSSION � Taylor asked Wilson about the Highway 93 upgrade and where it would be in relation to the property. Wilson answered the bypass would be to the west of the property and there would be a controlled intersection at the bypass and Highway 2. Hull asked where the flood plain was and if it was the small creep, and if the park would be commonly owned and who would pay taxes on it. Wilson answered it was the creek which flows under Appleway in a 24-inch culvert, and that there will be a maintenance agreement with the owners of the sublots for the parkland and common areas. Taylor asked about condition 10 relating to the flood plain and what the issues involved were. Wilson answered the basic issue is "what is the base flood elevation in this area and is it above or below the base flood elevation?". She explained that FERIA can assist in determing the base flood elevation in nondeliniated areas. She said the property is not mapped as being in the floodplain, but it is about 100 feet from a nondeliniated flood plain. The condition is insurance for the developer and the City that the property is outside the flood plain and above the base flood elevation for the area. Norton asked Blend to go over the number of units in the prof ect. Blend stated there will be 28 two bedroom two bath units; 20 two bedroom one bath units; eight fully accessible handicapped units on the bottom floor, with the remaining lower units being handicapped accessible and easily adaptable. He said the units will rent higher than Section 8 requirements and will be constructed to the same design throughout the development, even if they have different owners. Hull stated that if the property was in a flood plain they would not be able to get a mortgage, so it is not a Board problem. Taylor asked Wilson about the Meridian Road upgrade and Appleway Drive. Wilson stated that Appleway Drive is a collector, and handles a lot more traffic than just this project, and that ever-jone '_mows that Meridian Road is a serious problem. She said that there will be an attempt to get advance funding from /lDT by the C itv and County for the northern oortion of Kalispell City- Planning Board N4inutes of the me--tsm cat F6man, 10. 2004 Meridian, but there are no plans right now to improve Meridian Road south of Highway 2 yet. i Wilson stated that staff would not object to an amendment to � condition 10 that would state "the issues related to the 100 i year flood plain which lies to the west be adequately addressed prior to construction. of Lot 14." E AMENDMENT Hull moved and Anderson seconded to amend condition. 10 to read that "the issues related to the 100 year flood plain which lies to the west be adequately addressed prior to construction of Lot 14." ROLL CALL (AMENDMENT) The motion to amend condition 10 passed unanimously on a roll call vote. i ROLL CALL The main motion passed unanimously on a roll call vote. OLD BUSINESS Norton asked about the Kalispell Zoning Ordinance Continuance. Wilson answered another meeting is needed to continue the discussion and suggested some dates. It was decided to hold a workshop on Thursday, March 18, 2004. I I NEW BUSINESS There was no new business. ADJOURNMENT The meeting was adjourned at approximately 8:30 p.m. The next meeting of the Kalispell City Planning Board and Zoning Commission will be held on Tuesday, March 9, 2004. A work session will be held on Thursday, March 18, 2004 at 7:00 pm - John Hinche . stated he will not be at the March meeting. George Taylor President Judi Funk Recording Secretary APPROVED as submitted/corrected: j /04 Kaiispeil Cite Nanning Board Minutes oif Like meeting of February 11 0, 2004 ORCHARD VILLAGE SUBDIVISION TRI-CITY PLANNING OFFICE STAFF REPORT KPP-04-1 FEBRUARY 4, 2444 A report to the Kalispell City Planning Board and the Kalispell City Council regarding a request for preliminary plat approval of a 14-lot residential subdivision. A public hearing on this proposal has been scheduled before the planning board for February 10, 2004 the Kalispell City Council Chambers. The planning board will forward a recommendation to the city council for final action. BACKGROUND. This property was annexed to the city of Kalispell in June of 2003 and given a zoning designation of B-2, General Business, with the intent that the property would be developed with multi -family dwellings which are listed as a permitted use in the district. A. Petitioner and Owners Technical Assistance: Orchard Village LLP P.O. Box 7505 .Kalispell, MT 59904 (406) 752-5250 Montana Mapping Association I I5 Valley View Drive Kalispell, MT 59901 B. Location and Legal Description of Property: The property proposed for subdivision is located on the south side of Appleway Drive and east of its intersection with Highway 2 approximately one -quarter of a mile. The properties proposed for annexation can be described as Assessor's Tracts Assessor's Tract 15 located in Section 13, Township 28 North, Range 22 West, P.M.M., Flathead County, Montana. C. Nature of Application: This is a request for preliminary plat approval of a 14-lot residential subdivision on approximately 3.18 acres in the west part of Kalispell. Each of the 14 lots would be developed with a four-plex apartment building. There would be a total of 56 dwelling units within the site once fully developed. The apartment buildings and the "sublots" being created would be individually owned while the parking, access, recreational area and landscaping would be commonly shared, owned and maintained. It is anticipated by the developers that the property would likely be developed in two phases that would be completed over a two or three year period. The property lies on the south side of Appleway Drive and has been used in the past for a residence and vintage automobile storage yard. The property has essentially been cleared of the accumulated vehicles and other items. The property was annexed into the city in June of 2003 with and given a zoning designation of B-2, General Commercial. It has been the intent of the owners to develop this property with multi -family dwellings which are listed as a permitted use in the B-2 zoning district. This will not be Section 8 housing as initially stated in the application. D. Size: Total Area: 3.176 acres Total Lot Area in Lots: 0.891 acre Area in Parking: 1.098 acres Park / Play Area: 0.389 acre Average Lot Area: 0.063 acre E. Existing Land Use: This property is currently has a single family residence on it and is otherwise undeveloped. F. Adjacent Land Uses and Zoning: There is a mix of residential and non residential uses in the immediate area. This area can be described as an area in transition. North: Undeveloped and single-family homes, City B-2 zoning East: Residential development, County R-1 zoning South: Railroad tracks and; County 1-2 zoning West: Single-family homes, County R-1 zoning G. General Land Use Character: This is an area in transition and it lies on the western fringes of the city limit. It can be described as generally residential in character with some non-residential uses to the west and south. The railroad tracks lie to the south of this property and there are houses to the east and west. H. Zoning: This property is zoned B-2, General Business, which lists multi -family dwellings as a permitted use in the district. Because the sublots are being created for conveyance, this proposal subject to public review. I. Utilities: This subdivision would receive full City services. Water: City of Kalispell Sewer: City of Kalispell Solid Waste: City of Kalispell Gas: Montana Power Company Electricity: Flathead Electric Coop (underground) Telephone: CenturyTel (underground) Fire: City of Kalispell Schools: School District #S, Kalispell Police: City of Kalispell COMMENTS FROM THE SITE DEVELOPMENT REVIEW COMMITTEE This matter carve before the site development review committee and there was support for the subdivision. The Fire Department needs to have the fire access road controlled with some sort of gate or pull out bollards and have regular snow removal. The fire hydrants will need to be located within the site as development occurs. There are no sidewalks along Appleway Drive and the staff will be recommending they be installed. There were some concerns that a phase I environmental assessment might be important because of the prior use as a wrecking / vehicle storage yard. There was so me discussion regarding a pickup area for public transportation. Landscape areas need to be grass or something similar, not rock. A gate or two to access the bike path is a good idea. The staff will speak with with the State regarding any floodplain issues, REVIEW AND FINDINGS OF FACT 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: Fire: 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 buildings within the subdivision would be constructed in accordance with the Uniform Fire Code and have access which meets City standards. All of the buildings have and necessary improvements will be constructed to City standards. The property does not have steep slopes or woody fuels. Hydrants will be required to be placed in compliance with the requirements of the Uniform Fire Code and the approved by the fire chief. The fire access and fire flows will need to be approved by the fire department prior to combustible construction taking place. Flooding: According to FIRM Panel #18I5 dated 9/30/92 lies within approximately 75 feet of the 100 year floodplain along Ashley Creek. This in a non -delineated area of the floodplain however, this property is significantly higher than the floodplain to the west and there appears to be very little chance of flooding. This matter will be further discussed with the State floodplain coordinator and the local floodplain administrator. Access: Access to the site will be from Appleway Drive, a City collector street, from two driveways on the east and west sides of the property into a main parking lot A fire lane to the south will provide full circulation through the site. Access to the site is good and pose no potential safety hazards. B. Effects on Wildlife and Wildlife Habitat: This property is generally level with a very gentle slope and was used for residential and vehicle storage in the past. There is very little chance that this property provides any type of important wildlife habitat other than perhaps some birds who would be attracted to the wetland / floodplain area to the west C. Effects on the Natural Environment: Surface and. groundwater: This subdivision will be served by public water and sewer thereby minimizing any potential impacts to the groundwater, Ashley Creek lies to the west and to the south which will not be impacted by this development. Drainage: This site is relatively level and does not pose any unusual challenges to site drainage. Curbs and gutters will be installed within the paprking lot and a stormwater management plan will have to be developed to address the runoff from the site. There is no City storm drain system in the immediate area and storm water will have to be managed using on -site retention methods as part of the stormwater management plan. Using the park / play area as part of the stormwater manage plan may be a viable option, but will be required to be developed in accordance with state and local standards. D. Effects on Local Services: Wafter: Water service to the subdivision would be provided by the City of Kalispell and extended from a water main that lies to the north of this subdivision in the Appleway Drive right of way. The water extension would be done solely at the developer's expense. The water main extension will provide water service to the apartments in the subdivision as well as the fare flows needed to meet the requirements of the Uniform Fire Code. The water system for the subdivision will be reviewed and approved by the Kalispell Public Works Department and the Kalispell Fire Department as part of the development of the subdivision and it phases. Sewer: Sewer service will be provided by the City of Kalispell with the extension of existing sewer mains from the north at the developer's expense. The sewer is currently located in the Appleway Drive right-of-way and will be extended to the south within the site. Individual connections will be made to each building. Design and construction of the main will be reviewed and approved by the Kalispell Public Works Department and will be required to be constructed in accordance with the City of Kalispell's Design and Construction Standards. Roads: Traffic projections for this subdivision are estimated to be approximately 364 additional vehicle trips per day based on the estimate of 6.5 vehicle trips per residence per day in the area. All improvements within the site will be constructed to City standards. Appleway is designated as a collector in the Kalispell Transportation Plan and is currently a substandard road because it does not have curb, gutter and sidewalks. The staff would recommend that a note be placed on the face of the final plat that, in lieu of improvements at this time, will waive protest to the creation of a special improvement district to upgrade Appleway Drive at some point in the future. There is adequate capacity in the roads in the area and the impacts from this development would not be beyond that which would be anticipated as a result of continued growth and urban expansion in the area. All of the internal driveways and access within the development will be privately owned and maintained. Schools: This development is within the boundaries of School District 5, Kalispell. 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 five to seven additional school age children may be generated from this subdivision at full build out. This would have an insignificant impact on the district. Parks and Open Space: 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. With 3.176 acres in the development, the parkland requirement 0.346 acres of land. The park / play area indicated on the plan has 0.389 of an acre. This park area will be developed for recreational purposes and will be privately owned and maintained by the collective owners within the subdivision. A bike and pedestrian trail lies immediately to the south of the play are and provides a nice amenity to the development. The staff would encourage the developer to coordinate with the County Parks and Recreation Department to install a gate to provide direct access to the trail. 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. Water mains will need to be designed to provide minimum fire flows and installed per City specifications at approved locations. Minimum fire flows shall be in accordance with Uniform Fire Code (1997) Appendix III -A and fire hydrants shall be provided per City specifications at locations approved by the fire department, prior to combustible construction. Fire department access shall be provided in accordance with Uniform Fire Code (1997) Article 9. Although .fire risk is low because of good access and fairly level terrain, the fire department is recommending that access to the subdivision and the hydrants be in place prior to final plat approval and / or use of combustible materials in construction. Solid Waste: Solid waste will be handled by a private hauler and taken to the Flathead County Landfill. 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 can Agriculture and agricultural water user facilities: The site has not been traditionally used for agriculture. The land is efficiently and effectively being used for urban residential development. Its location within the planning jurisdiction and 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 the Kalispell Growth Policy: This property is in the Kalispell Growth Policy potential utility service area and is anticipated to develop as Commercial. This land use designation anticipates a wide mix of uses with significant impacts to roads in the area. The proposed development is in compliance with the anticipated uses and development of the growth policy. G. Compliance with Zoning. This property has been zoned B-2, General Business, a district intended for a wide variety of uses with fairly intensive impacts. This development will have relatively minor impacts in relation to other uses. The minimum lot size requirement for the B-2 zoning district is 7,000 square feet. The average density within this subdivision is 9,894 square feet per lot which is essentially the common area and lots that total 3.18 acres divided by 14. Compliance with the Subdivision Regulations: The proposed subdivision complies comply with the Kalispell Subdivision Regulations and the applicants are not requesting any variances to the subdivision. regulations. RECOMMENDATION Staff recommends that the Kalispell City Planning Board adopt staff report KPP-04-1 as findings of fact and recommend to the Kalispell City Council that the preliminary plat be approved subject to the following conditions: 1. That the development of the site shall be in substantial compliance with application submitted, the site plan, covenants, elevation drawings, materials and other specifications as approved by the city council. (Kalispell Subdivision Regulations, Appendix C -.Final Plat) 2. That the plans and specifications for all public infrastructure be designed and installed in accordance with the Kalispell Design and Construction Standards and a letter shall be obtained stating that they have been reviewed and approved by the Kalispell Public Works Department. (Kalispell Subdivision Regulations, Chapter 3, Design Standards, Section 3.01). 3. Minimum fire flows shall be in accordance with Uniform Fire Code (1997) Appendix III -A. Fire hydrants shall be provided per City specifications at locations approved by this department prior to combustible construction. All house numbers shall be visible from the driveway entrance and clearly posted on each of the buildings. (Kalispell Subdivision Regulations, Section 3.20). 4. That a letter be obtained from the Kalispell Parks and Recreation Department stating that the a landscape plan has been reviewed and approved for the placement of trees and landscaping materials within the development. (Kalispell Subdivision Regulations, Section 3.11). S. That the approximately 0.389 acre area designated on the plat as "park" shall be developed to provide recreational amenities and shall be privately owned an maintained. This park area satisfies the parkland dedication. requirements. (Kalispell Subdivision Regulations. 3.19). 5. The internal road within the parking lot shall be signed in accordance with the policies of the Kalispell Public Works Department and the Uniform Traffic Control Devices Manual and be subject to review and approval of the Kalispell Fire Department. (Kalispell Subdivision Regulations, Section 3.09). 7. The developer shall provide a letter from the U.S. Postal Service approving the plan for mail service. (Kalispell Subdivision. Regulations, Section 3.22). 8. Street lighting shall be located within the subdivision and shall be shielded so that it does not intrude unnecessarily onto adjoining properties. (Kalispell Subdivision Regulations Section 3.09(L)). 9. All utilities shall be installed underground. (Kalispell Subdivision Regulations, Section 3.17). 10. That issues related to the 100 year floodplain that lies to the west be adequately addressed prior to construction in the southwest quadrant of the site. (Kalispell Subdivision Regulations, Section 3.05), 11. That a mote be placed on the face of the final plat that waives protest to the creation of a special improvement district for the future upgrade of Appleway Drive. 12. That a provision be made for the use and maintenance of common elements within the subdivision by way of a maintenance agreement or within the covenants for the subdivision. 13. That a minimum of two-thirds of the necessary infrastructure for this subdivision shall be completed prior to final plat submittal. 14. All areas disturbed during development of the subdivision shall be re -vegetated with a weed -free mix immediately after development. 15. That preliminary plat approval shall be valid for a period of three years from the date of approval with an automatic two-year extension as each phase of the subdivision plat has been completed and fled. (Kalispell Subdivision Regulations, Section 2.04). REPORTS \KALTSP LL\KPP04-1.DOC ORCHARD VILLAGE SUBDIVISION TRI-CITY PLANNING OFFICE STAFF REPORT KPP-04-1 FEBRUARY 4, 2004 A report to the Kalispell City Planning Board and the Kalispell City Council regarding a request for preliminary plat approval of a 1.4--lot residential subdivision. A public hearing on this proposal has been scheduled before the planning board for February 10, 2004 the Kalispell City Council Chambers. The planning board will forward a recommendation to the city council for final action.. BACKGROUND: This property was annexed to the city of Kalispell in June of 2003 and given a zoning designation of B-2, General Business, with the intent that the property would be developed with multi -family dwellings which are listed as a permitted use in the district. A. Petitioner and Owners: Orchard Village LLP P.O. Box 7505 Kalispell, MT 59904 (406) 752-5250 Technical Assistance: Montana Mapping Association 115 Valley View Drive Kalispell, MT 59901 B. Location and Legal Description of Property. The property proposed for subdivision is located on the south side of Appleway Drive and east of its intersection with Highway 2 approximately one -quarter of a mile. The properties proposed for annexation can be described as Assessor's Tracts Assessor's Tract 15 located in Section 13, Township 28 Forth, Range 22 West, P.M.M., Flathead. County, Montana. C. Nature of Application: This is a request for preliminary plat approval of a 14-lot residential subdivision on approximately 3.18 acres in the west part of Kalispell. Each of the 14 lots would be developed with a four-plex apartment building. There would be a total of 56 dwelling units within the site once fully developed. The apartment buildings and the "sublots" being created would be individually owned while the parking, access, recreational area and landscaping would be commonly shared, owned and maintained. It is anticipated by the developers that the property would likely be developed in two phases that would be completed over a two or three near period. The property lies on the south side of Appleway Drive and has been used in the past for a residence and vintage automobile storage yard. The property has essentially been cleared of the accumulated vehicles and other items. ".C`lzIe proper y was annexed into ..lie City in June of 2003 with and given a zoi3ing designation of B-2, General Commercial. It has been the intent of the owners to develop this property with multi -fancily dwellings which are listed as a permitted use in the B-2 zoning district. This will not be Section 8 housing as initially stated in the application. D. Size: Total Area: 3.176 acres Total Lot Area in Lots: 0.891 acre Area in Parking: 1.098 acres Park / Play Area: 0.389 acre Average Lot Area: 0.063 acre E. Existing Land Use: This property is currently has a single family residence on it and is otherwise undeveloped. F. Adjacent Land Uses and Zoning: There is a mix of residential and non residential uses in the immediate area. This area can be described as an area in transition. North: Undeveloped and single-family homes, City B-2 zoning East: Residential development, County R-1 zoning South: Railroad tracks and; County 1-2 zoning West: Single-family homes, County R-1 zoning G. General Land Use Character: This is an area in transition and it lies on the western fringes of the city limit. It can be described as generally residential in character with some non-residential uses to the west and south. The railroad tracks lie to the south of this property and there are houses to the east and west. H. Zoning: This property is zoned B-2, General Business, which lists multi -family dwellings as a permitted use in the district. Because the sublots are being created for conveyance, this proposal subject to public review. 1. Utilities: This subdivision would receive full City services. Water: City of Kalispell Sewer: City of Kalispell Solid Waste: City of Kalispell Gas: Montana Power Company Electricity: Flathead Electric Coop (underground) Telephone: CenturyTel (underground) Fire: City of Kalispell Schools: School District #5, Kalispell Police; City of Kalispell COMMENTS FROM THE SITE DEVELOPMENT REVIEW COMMITTEE This -natter came before the site de-�Teloprnent review comr-nittee and -here was support for the subdivision.. The Fire Department needs to have the fire access road controlled with some sort of gate or pull out bollards and have regular snow removal. The :fire hydrants will need to be located within the site as development occurs. There are no sidewalks along Appleway Drive and the staff will be recommending they be installed. There were some concerns that a phase l environmental assessment might be important because of the prior use as a wrecking / vehicle storage yard. There was so me discussion regarding a pickup area for public transportation. Landscape areas need to be grass or something similar, not rock. A gate or two to access the bike path is a good idea. The staff will speak with with the State regarding any floodplain issues, REVIEW AND FINDINGS OF FACT 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: Fire: 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 buildings within the subdivision would be constructed in accordance with the Uniform Fire Code and have access which meets Citv standards. All of the buildings have and necessary improvements will be constructed to City standards. The property does not have steep slopes or woody fuels. Hydrants will be required to be placed in compliance with the requirements of the Uniform Fire Code and the approved by the fire chief. The fire access and fire flows will need to be approved by the fire department prior to combustible construction taking place;. Flooding: According to FIRM Panel #1815 dated 9/30/92 lies within approximately 75 feet of the 100 year floodplain along Ashley Creek. This in a non -delineated area of the floodplain however, this property is significantly higher than the floodplain to the west and there appears to be very little chance of flooding. This matter will be further discussed with the State floodplain coordinator and the local floodplain administrator. Access. Access to the site will be from Appleway Drive, a City collector street, from two driveways on the east and merest sides of the property into a main parking lot. A fire lane to the south will provide full circulation through the site. Access to the site is good and pose no potential safety hazards. B. Effects on Wildlife and Wildlife Habitat: 'Phis property is generalh, level with a very gentle slope and was used for residential and vehicle storage in the past. There is eery little chance that this property provides any type of important wildlife habitat other than perhaps some birds who would be attracted to the wetland / floodplain area to the west C. Effects on the Natural Environment: Surface and ,!roundwater• This subdivision will be Nerved by oublic water and sewer thereby minimizing any potential impacts to the groundwater, Ashley Creek lies to the west and to the south which will not be impacted by this development. Drainage: This site is relatively level and does not pose any unusual challenges to site drainage. Curbs and gutters will be installed within the paprking lot and a stormwater management plan will have to be developed to address the runoff from the site. There is no City storm drain system in the immediate area and storm water will have to be managed using on -site retention methods as part of the stormwater management plan. Using the park / play area as part of the stormwater manage plan may be a viable option, but will be required to be developed in accordance with state and local standards. D. Effects on Local Services: Water: Water service to the subdivision would be provided by the City of Kalispell and extended from a water main that lies to the north of this subdivision in the Appleway Drive right of way. The water extension would be done solely at the developer's expense. The water main extension will provide water service to the apartments in the subdivision as well as the fire flows needed to meet the requirements of the Uniform Fire Code. The water system for the subdivision will be reviewed and approved by the Kalispell Public Works Department and the Kalispell Fire Department as part of the development of the subdivision and it phases. Sewer: Sewer service will be provided by the City of Kalispell with the extension of existing sewer mains from the north at the developer's expense. The sewer is currently located in the Appleway Drive right-of-way and will be extended to the south within the site. Individual connections will be wade to each building. Design and construction of the main will be reviewed and approved by the Kalispell Public Works Department and will be required to be constructed in accordance with the City of Kalispell's Design and Construction Standards. Roads: Traffic projections for this subdivision are estimated to be approximately 364 additional vehicle trips per day based on the estimate of 6.5 vehicle trips per residence per day in the area. All improvements within the site will be: constructed to City standards. Appleway is designated as a collector in the Kalispell Transportation Plan and is currently a substandard road because it does not have curb, gutter and sidewalks. The staff would recommend that a note be placed on the face of the final plat that, in lieu of improvements at this time, will waive protest to the creation of a special improvement district to upgrade Appleway Drive at some point in the future_ There is adequate capacity in the roads in the area and the impacts from this development would not be beyond that which would be anticipated as a result of continued growth and urban expansion in the area. All of the internal driveways and access within the development will be privately owned and maintained. Schools: This development is within the boundaries of School District 3, Kalispell. 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 five to seven additional school age children may be generated from this subdivision at full build out. This would have an insignificant impact on the district. Parks and Open Space: The state and local subdivision regulations have parkland. / open space requirements for major subdivisions in the amount of 1.1 percent or one -ninth of the area proposed for the development_ With 3.176 acres in the development, the parkland requirement 0.346 acres of land. The park / play area indicated on the plan has 0.389 of an acre. This park area will be developed for recreational purposes and will be privately owned and maintained by the collective owners within the subdivision. A bike and pedestrian trail lies immediately to the south of the play are and provides a nice amenity to the development. The staff would encourage the developer to coordinate with the County Parks and Recreation Department to install a gate to provide direct access to the trail.. 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. Water mains will need to be designed to provide minimum fire flows and installed per City specifications at approved locations. Minimum fire flows shall be in accordance with Uniform Fire Code (1997) Appendix 111-A and fire hydrants shall be provided per City specifications at locations approved by the care department, prior to combustible construction. Fire department access shall be provided in accordance with uniform Fire Code (1997) Article 9. Although fare risk is low because of good access and fairly level terrain, the fire department is recommending that access to the subdivision and the hydrants be in place prior to final plat approval and / or use of combustible materials in construction. Solid Waste: Solid waste will be handled by a private hauler and taken to the Flathead County Landfill. 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. ir. Effects an Agriculture and agricultural water user facilities: The site has not been traditionally used for agriculture. The land is efficiently and effectively being used for urban residential development. Its location within the planning jurisdiction and its p_rox--irnity to urban services nukes this property prime for the type of development being proposed. 'There will be no impact on agricultural uses within the Vallev and no impact on agricultural water user facilities sine: this property will be served by a public water system.. F. Relation to the Kalispell Growth Policy: This property is in the Kalispell. Growth Policy potential utility service area and is anticipated to develop as Commercial. This land use designation anticipates a wide mix of uses with significant impacts to roads in the area. The proposed development is in compliance with the anticipated uses and development of the growth policy. G. Compliance with Zoning: This property has been zoned B-2, General Business, a district intended for a wide variety of uses with fairly intensive impacts. This development will have relatively minor impacts in relation to other uses. The minimum lot size requirement for the B-2 zoning district is 7,000 square feet. The average density within this subdivision is 9,894 square feet per lot which is essentially the common area and lots that total 3.18 acres divided by 14. Compliance with the Subdivision Regulations: The proposed subdivision complies comply with the Kalispell Subdivision Regulations and the applicants are not requesting any variances to the subdivision regulations. RECOMMENDATION Staff recommends that the Kalispell City Planning Board adopt staff report KPP-04-1 as findings of fact and recommend to the Kalispell City Council that the preliminary plat be approved subject to the following conditions: 1. That the development of the site shall be in substantial compliance with application submitted, the site plan, covenants, elevation drawings, materials and other specifications as approved by the city council. (Kalispell Subdivision Regulations, Appendix C - Final Plat) 2. That the plans and specifications for all public infrastructure be designed and installed in accordance with the Kalispell Design and Construction Standards and a letter shall be obtained stating that they have been reviewed and approved by the Kalispell Public Works Department. (Kalispell Subdivision Regulations, Chapter 3, Design Standards, Section 3.01). 3. Minimum fire flows shall be in accordance with Uniform Fire Code (1997) Apnendilx 111-A. Fire hvdrants shall be provided oer Citv specifications at locations approved by this department prior to combustible construction. All house numbers shall be visible from the driveway entrance and clearly posted on each of the buildings. (Kalispell Subdivision Regulations, Section 3.20). 4. That a letter be obtained from. the Kalispell Parks and Recreation Department stating that the a landscape plan has been reviewed and approved for the placement of trees and landscaping materials within the development (Kalispell Subdivision Regulations, Section 3.11). 5. That the approximately 0.389 acre area designated on the plat as "park' shall be developed to provide recreational amenities and shall be privately wAmed an maintained. This park area satisfies the parkland dedication requirements. (Kalispell Subdivision Regulations. 3.19). 6. The internal road within the parking lot shall be signed in accordance with the policies of the Kalispell Public Works Department and the Uniform Traffic Control Devices Manual and be subject to review and approval of the Kalispell Fire Department. (Kalispell Subdivision Regulations, Section 3.09). 7. The developer shall provide a letter from. the U.S. Postal Service approving the plan for mail service. (Kalispell Subdivision Regulations, Section 3.22). S. Street lighting shall be located within the subdivision and shall be shielded so that it does not intrude unnecessarily onto adjoining properties. (Kalispell Subdivision. Regulations Section 3.09(L)). 9. All utilities shall be installed underground. (Kalispell Subdivisions. Regulations, Section. 3.17), 10. That issues related to the 100 year floodplain that lies to the west be adequately addressed prior to construction in the southwest quadrant of the site. (Kalispell Subdivision Regulations, Section 3.05). 11. That a note be placed on the face of the final plat that waives protest to the creation of a special improvement district for the future upgrade of Appleway Drive. 12. That a provision be made for the use and maintenance of common elements within the subdivision by way of a maintenance agreement or within the covenants for the subdivision. 13. That a minimum of two-thirds of the necessary infrastructure for this subdivision shall be completed prior to final plat submittal. 14. All areas disturbed during development of the subdivision shall be re -vegetated with a weed -free mix immediately after development. 15. That preliminary plat approval shall be valid for a period of three years from the date of approval with an automatic two-year extension as each phase of the subdivision plat has been completed and filed. (Kalispell Subdivision Regulations, Section 2.04). REPORTS \KALISPELL\XPPQ4-1.DOC T-1 A 4 -'D f 2 13 2 7 T-2 1A 1 c v 1 B 1 E xEZL�B 1 7 CA j T B_ S C, NIS ADD,# 1B 1AA 12! 13 Fl;_'� Propert), ........... . ...... . .... 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 SaF ------- - ------------ f 7 QN 40 11A 10A -DF_ A % 5D 5 '1 3 4 14 lr3ounty R-1 11DA 2 T71 Ell I N T 1413 1 )J' 8 -if 6 -�,, & I A 41 f I 5DC" 2 iLL 3 VICINITY MAP ORCHARD VILLAGE LLC PRELIMINARY PLAT - ORCHARD VILLAGE A 14 LOT RESIDENTIAL SUBDIVISION ON 3.18 ACRES INTENDED FOR 4-PLEX DEVELOPMENT FOR A TOTAL OF 56 UNITS IN B-2, A GENERAL BUSINESS DISTRICT PLOT DATE. 1/21/04 FILE # KPP-04-01 SCALE I" = 4007 H:\gis\site\kpp04_1_d-g II'I 1 11 E 11 VI 1 4�I': III'I I� PRELIMINARY PLAT CDE C)RCHARE) VILLAC3E SUBDIVISI©N NE 114 Section 13, T, 26 North, R. 22 West FLATHEAD COUNTY, MONTANA nk e�evarioN 7 c9 PRELIMINARY PLAT C:)T 01- CDRCHARD VILLAGE SUBIDIVISIC)N -NE IM Section 13 T A NorthWest FLATHEAD COUNTY, MONTANA A-PL -E— V" Y-,.- ......... ��-j _FFF 1117 -7T!�T-i--'-- RI r-OMHON FAQ KII,0- 17 20 ------ ' L L 777 PRLVAINARY PLAT OP15/1 j--CDRCHARID VILLAGE SUBDIVISI(=>N NE 114 Section 13, T. 28 North, R. 22 West FLATHEAD COUNTY, MONTANA N SITE DEVELOPMENT REVIEW COMMITTEE SUMMARY Thursday, January 29, 2004 Building Department Conference Room ATTENDING: Frank Castles, Asst. City Engineer Jim Stewart. Fire Marshal Narda Wilson, 3CPO Planner Kathy Kuhlin, Recording Secretary Jeff Clawson, Plans Examiner Sandy Wheeler, Comm- Dev. Mgr. P. J. Sorensen, Zoning Administrator, Chair Guests: Michael Blend and Jason Hatten, Blend Construction OLD BUSINESS: 601 E Washington — conversion of Meat Supply to salon/catering — The handicapped sidewalk will need to be certified by an engineer. They need to have their time frame clarified. They are working on the drainage issue. A revised site plan needs to be completed. 4 NEW BUSINESS: 125 W Washington --- and I" Avenue W. N. -beauty salon (new building) — owned by Michael Blair. This lot is zoned B-3. They will need a green belt with a fence or hedge on the residential side. They should have a three foot landscape buffer along the road side. They need to bring their front entrance sidewalk out to the curb for a handicapped area. This is approved pending the building code check. Planning. Board Agenda --- --- Orchard Village — plat/apartment complex south of Appleway -- Michael Blend and Jason Hatten — Sb apartments, 14-4 plexes, sub - lots like townhouses, B-2 zoning, they are subdividing the property. This is a major subdivision. They will need to have a 10 foot setback area in the rear. The lots will need to be numbered. Lot sizes need to be corrected on the plans. The Fire Department wants to see the fire access controlled with some sort of gate or pull out bollards. They are also requiring snow removal. The fire hydrants will need to be located. The sidewalks look nice. A Phase I Environmental Assessment might be important. The units are ADA accessible with S units that are fully compliant. A pickup area for handicapped people was discussed, as well as a sheltered pickup area. Landscape areas need to be cyrass or something similar, not rock. Internal work in the common areas (parking, landscaping, etc) should be completed or bonded for prior to the Final plat. They will be phasing in the buildings over the next two years. Get occupancy approval as you go based upon the unit being stand-alone if construction were to stop at that point. Sidewalks along the street should be installed. A gate or two to access the bike path is a good 'idea. This will not be Section S housing. Final plat individual units/phases as they are completed. They will need to meet with Public Works for an exemption form. Narda will speak with Karl Christians with the State regarding any flood plain issue. OTHER DISCUSSION: Terrace View Subdivision — on the north side of California. Now proposing four single-family lots. They are withdrawing the PUD, the larger subdivision, and are asking for R-3 zoning. There will be a shared access. Planning Board Work Session — They want to look at sign regulations. They also want to work on the bike and pedestrian walkways. They had some questions regarding the Wastewater Treatment Plant and it was suggested that .Tire Hansz go to one of their meetings to discuss the Preliminary Engineering Report with them. Their train concern is regarding infiltration. V Residence Owned By The Catholic Church -- They want to change the zoning to commercial, but the neighborhood wants it to remain residential. Discussion was held regarding the neighborhood, parking, location, etc. and the committee agreed it should be kept residential based largely on parking. The meeting was adjourned at I l :00 a.m. cc: Chris Bldg 3CPO Comm. Dev FCAOA Police Fire Parks Public Works MDOT ENVIRONMENTAL ASSESSMENT ORCHARD VILLAGE KALISPELL, MONTANA INTRODUCTION The proposed subdivision is located in S13, T28, R22, Flathead County, Montana. I. GEOLOGY A. The proposed subdivision is located in a relatively safe geological area. The site is gently sloping with slopes of less than 4%. Soil is primarily Ke (Kalispell Loam). B. No rock outcroppings have been encountered on the site. There are no known conditions that would require immediate measures to prevent or reduce the danger of property damage or personal injury. II. SURFACE WATER A. There are no streams, rivers, intermittent streams, lakes or marshes of any kind on this site. B. There are no artificial water systems on the site. C. The site is not subject to flood hazards and is not identified by FEMA as being in the 100-year floodplane. III. VEGITATION A. The site consists of the partial remains of an apple orchard that has outlived its productive life. Grasses and weeds fill in between the trees. B. Existing trees identified on the Preliminary Plat will be evaluated for their health and appropriateness in the overall landscape design. Many of the trees will be removed to clear the site for the buildings and parking required. It is the intention of the developer to protect and maintain as many of the healthy trees as possible. C. Trees that are identified to be saved will be protected with temporary construction. fencing. IV. WILDLIFE A. There are no waterways on the site to support fish or waterfowl. B. The site is in an urban area located between the railroad tracks and Apple Way, which is a fairly highly traveled road. This site is not suitable for big game winter range. There are no known endangered species or wildlife habitat on the site. C. The intent of the subdivision is to create desirable laird habitat by landscaping the property and maintaining as many healthy trees as possible. V. AGRCULTURE AND TIMBER PRODUCTION A. The site is 3.18 acres. The soil is in capability unit He-2. The site was an old apple orchard for an unknown period of time. For many years in the more recent past it was used to store old equipment and machinery. It has not been maintained as an orchard for many years. B. Adjacent property is native grasses and is not used for agriculture. C. There are no adjacent agricultural uses. D. The site is not timbered. VI. HISTORICAL, ARCHAEOLOGICAL OR CULTURAL FEATURES A. There are no known historical, archaeological, or cultural features associated with the land. B. Should any be discovered during construction, work in that area will be suspended until the site can be properly evaluated. VII. SEWAGE TREATMENT A. The estimated average number of gallons of sewage generated per day by the subdivision when fully developed is approximately 11,200 gallons per day B. The 14 lots will be served by the Kalispell city sewage system. C. The existing sewer main is on the south side of Apple Way and is identified on the preliminary plat. D. Provided by the City of Kalispell. VIII. WATER SUPPLY A. The proposed lots will be served by a public water system. 1. The estimated average number of gallons of water required per day by the subdivision when fully developed. is 11,760 gallons per day including irrigation. 2. a. The subdivision will be served by the Kalispell public water system. b. The water main is located on the northern side of Apple Way. It has been determined by the Kalispell Fire Dept. that sufficient water capacity is available at the site. c. Provided by the City of Kalispell. 1X. SOLID WASTE A. Waste bins will be placed at four screened locations around the site as indicated on the preliminary plat. B. Evergreen Disposal will be contracted with to provide garbage collection for the subdivision. X. DRAINAGE A. Streets and Roads 1. There are no internal streets or roads in the proposed subdivision. 2. There are no internal streets or roads in the proposed subdivision. 3. No stream or drainage crossings are necessary in the subdivision. B. Other Areas 1. Surface runoff will be collected and contained on site. 2. No drainage from this project will be discharged to state waters. 3. This project will not alter any existing water course. 4. A formal drainage plan will be formulated and submitted prior to final plat approval. XI. ROADS A. Traffic generated by the development should be less than 364 trips per day. l . Access to the proposed subdivision will be off Apple Way. Appleway is a paved collector, which is capable of accommodating the additional traffic. 2. The proposed subdivision should not require any additional road maintenance. B. No private roads are being installed. C. NIA D. Access to each lot is provided by the looped parking lot within the proposed subdivision. E. Year-round access to all lots and common areas within the subdivision via conventional automobile will be provided. The property owners will provide snow removal for the parking area within the subdivision. F. No access over private property is planned. Xll. EMERGENCY SERVICES A. Emergency services for the subdivision are provided as follows: 1. Fire protection. 3 a. Currently the proposed subdivision is under the jurisdiction of the Kalispell Fire Department. b. N/A c. N/A d. Two fire hydrants are proposed, one located at each side of the subdivision, as indicated on the preliminary plat. As per flow test by the Kalispell Fire Department on 8/28/03 the Fire Marshal has indicated that there is sufficient pressure and flow to serve this subdivision. 2. Police protection will be provided by the Kalispell Police Department. 3. Ambulance service is available from the City of Kalispell or Alert Air Ambulance from Kalispell. 4, Medical Services are available at Kalispell Regional Hospital. B. The subdivision should not require any additional personnel or facilities for emergency services. XIII. SCHOOLS A. Peterson School is the primary school that will serve this subdivision. Linderman is the 7t' grade that will serve this subdivision. Kalispell Junior High and Flathead High School will serve the Jr. High and High School students. B. The estimated number of school age children living in the proposed subdivision when completed is 28.. This number of children will not significantly impact the existing schools. XIV. ECONOMIC BENEFITS A. The present assessment classification of the site is commercial and the assessed value is $243,400. B. The new assessment classification will be commercial, and the estimated assessed valuation of all 'structures at completion in 2006 is $3,920,000. C. Water system development fees are estimated at $2,156.50 per unit time s 56 units for a total of $120, 7 64. Sewer system development fees are estimated at $82,000. Solid waste fees are not applicable as they are by private contract. Storm water system development fees are not applicable at this time. 4 XV. LAND USE A. The historical use of the site has been for a single-family residence, apple orchard, storage of used equipment and machinery. B. The subject property has recently been zoned B-2 and was recently annexed into the city. The property is not part of any neighborhood plan. C. The adjacent properties are a mix of residential and businesses. The proposed development will not affect access to any adjoining land. D. The proposed development will provide affordable housing to people on the west end of town. This development will provide a positive housing alternative for people who wish to live close to workplaces at the west end of town. This site is right on the "Rails to Trails" bike and walking path, it is close to shopping, theaters, restaurants and jobs. If the new technical support company decides to locate at Gateway West Mall, this will be a prime location for their new employees to live, within walking distance to work. This location is also only 1000 feet from Hwy 2, which makes for quick access to this main route. There are currently a large number of multi -family developments north of 2-mile Drive, but only scattered duplexes and occasional 4-plex's on the west side of Kalispell. E. There are no known health or safety hazards on or near the development. F. There will not be any nuisances created by the subdivision, other than temporary construction activities. XVI. PARKS AND RECREATION FACILITIES A. The development contains an area for a small park with a play area that is central to the community of buildings. The "Rails to Trails" bike path is directly behind the development and access will be provided to the bike path. Flathead County Fairgrounds is approx. 1/3 mile away from the subject site. B. The entire subdivision is 138,355.18 sq. ft. with 16,959.62 sq. ft. of park space, or a little over 12.25% of the total subdivision area. XVIL UTILITIES A. All utilities in the proposed development will be placed underground and provided by: 1. Electricity: Flathead Electric Co-op, Inc. - 2510 Highway 2 East, Kalispell, Montana. 2. Telephone: Centurytel - 290 North Main, Kalispell, Montana. B. Copies of the Preliminary I'latwill be submitted to the affected utilities for review. C. The utility installation completion date is projected for Fall of 2005. 5 February 2, 2004 To Whom It May Concem ln response to a recent inquiry made by the oun-at ovmm of SS Applaway Drive., Kalispell, Montana, we, would collectively liNeaddrew any cotes regarding pQsst'ble envixo enW conb=ivatian to the wid Omwry. Thm of us who bave lived and worked on the premises and who recently disposed of all the nuacrials that had been collected over the }ears, have never at anytime wit�aesscd slay *�adcnce of ps spills, oil spills, or contaa iination of any sort Although our recent inspections were iixnircd to calrc+fu1 observatie>a of the surface anl.r, we found w spot on the entire property -that Save Ls any reason to believe that the wil had ever been harrned.in any manner. Please feel free to contact any of us at anytime if You have any further rwstions. 'T`b=ik you for your attentiou in this matter. S incF,!'Oly, lol�n Dettw;ler SlWk Janet $lade I1ortl�Y Getz 6 s At ' 1 iMIKIMkiat Building Hope, Building Dreams January 5, 2004 Kalispell Planning Board Kalispell City Council C/O Tri-City Planning Office 17 Second Street East, Suite 211 Kalispell, Mt 59901 Re: Preliminary Plat Application I am submitting this preliminary plat on the property located at 55 Appleway in Kalispell. This is currently a permitted use within the existing B-2 Zoning. The preliminary plat is for fourteen 4-Plex Units that will be individually owned with all parking, ingress/egress and play areas held in common. The project will have 2 entrances onto Appleway, the entrances will staggered from the project across the street that is currently in the planning stag. These 56 Units will qualify for "Section 8" rental. We have reserved space for a park/play area adjoining the existing rails to trails. The 20' fire lane will be constructed with grasscrete or some similar product that will provide a drivable surface that is covered with grass_ We will provide access through the fence in 2 locations to rails to trails. The entire project will be landscaped and contoured for storm water collection and dissipation (engineered plan to follow). All of the parking will be paved with concrete sidewalks and screened trash collection areas. The internal sidewalks will be winding to add appeal and to enable us to save as much existing landscaping as possible. The buildings are designed in a "pinwheel" design to create greater visual appeal as well as added privacy for the residents. With the new call center scheduled to move into the old stream building. We believe that this is an ideal location for this type of affordable housing. We anticipate 2 yrs. To total completion. 1069 N. Aieridian Rorie, Kalispell P.0_ Box 7505, Kalispell, MT 59904 405.752.52,50 Fax 406. i 52.2668 ni)ie€aci�ceiaturvteLs-ict www.hie€Zddesiunbuiid.corn Please find enclosed for Preliminary Plat the following_ one Application for major subdivision preliminary plat approval; one environmental assessment; one letter of consent; one adjoining property owners list; one application fee; twenty copies of the preliminary plat and one reduced copy of the preliminary plat in l lxl7 size_ I would like to start this project in the spring and would appreciate your favorable consideration of my preliminary plat. Sincerely, Michael Blend APPLICATION FOR MAJOR SUBDIVISION PRELIMINARY PLAT APPROVAL 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: Orchard Village OWNER(S) OF RECORD: Name Orchard Village LLP Phone 406-752-5250 Mailing Address PO Box 7505 City Kalispell State MT zip 59904 TECHNICAL/PROFESSIONAL PARTICIPANTS (Surveyor/Designer/Engineer, etc): Name &. Address Montana dapping Association - 115 Valley View Drive - Kalispell Name &, Address Blend Design & Build - PO Box 7505 -- Kalispell Name & Address LEGAL DISCRIPTION OF PROPERTY: City/County City of Kalispell Street Address Assessor's Tract No(s) --Txqnt Lot No(s)� 1/4 Sec NE, Section 1 Township 281T Range _??I. GENERAL DESCRIPTION OF SUBDIVISION: Number of Lots or Rental Spaces 14 Total Acreage in Subdivision 3.18 Total Acreage in Lots '.89 Minimum Size of Lots or Spaces , Q6.., ... �... Total Acreage in Streets or Roads 0 Maximum Size of Lots or Spaces .�07 Total Acreage in Parks, Open Spaces and/or Common Areas 2.29 PROPOSED USE(S) AND NUMBER OF ASSOCIATED LOTS/SPACES: Single Family Townhouse Mobile Home Park Duplex Apartment Recreational Vehicle Park Commercial Industrial Planned Unit Development Condominium Multi -Family XXX Other APPLICABLE ZONING DESIGNATION & DISTRICT B2 ESTIMATE OF MARKET VALUE BEFORE IMPROVEMENTS 300 000.00 IMPROVEMENTS TO BE PROVIDED: Roads: Gravel Paved Curb Gutter x Sidewalks ----_Alleys Other Water System: Individual Multiple User Neighborhood .....Public Other Sewer System: Individual Multiple User Neighborhood x Public Other Other Utilities: xx Cable TV x Telephone X Electric Gas Other Solid Waste: Horne Pick Up Central Storage x Contract Hauler Owner Haul Mail Delivery: x Central -Individual School District: Di stri et 5 Fire Protection: xTHydrants Tanker Recharge Dire District: "jigppl l Drainage System: Developer- will pr-Gvide an engineered en site di�a±iqage an PROPOSED EROSION/SEDIMENTATION CONTROL: devel2per will landscape entire site VARIANCES: ARE ANY VARIANCES REQUESTED? no (yes/no) If yes, please complete the information below: SECTION/REGULATION OF REGULATIONS CREATING HARDSHIP: EXPLAIN THE HARDSHIP THAT WOULD BE CREATED WITH STRICT COMPLIANCE OF REGULA PROPOSED ALTERNATIVE(S) TO STRICT COMPLIANCES WITH ABOVE REGULATIONS: PLEASE ANSWER THE FOLLOWING QUESTIONS IN THE SPACES PROVIDED BELOW: 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? 3. Will the variance affect, in any manner, the provisions of any adopted zoning regulations or Master Plan? 4. Are there special circumstances related to the physical characteristics of the site (topography, shape, etc.) that create the hardship? 5. What other conditions are unique to this property that create the need for a variance? 3 APPLICATION CONTENTS: 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. Preliminary plat application. 2. 20 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-Rng Lot/Tract No Property Owner & Mailing Address 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, I 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 property for routine monitoring and inspection during the approval and development process. (Applicant) (late) As approved by the TCPB, Effective 05/01 /03 LETTER OF CONSENT On this 5�day of , 2004, Genesis Development LLC, being the owner of record as per Deed recorded on July I0' of 2003 do hereby consent to Orchard Village LLP, PO Box 7505, Kalispell, Montana, the right to make any applications to Tri-City Planning & Zoning Office regarding said property located at 55 Appleway in Kalispell as if said company was the owner of record. Any fees relative to this process will be borne entirely by Orchard Village LLP. Signed: Joe k, Managing Member STATE OF MONTANA ss County of Flathead On this : day of �(�2004, before me, the dersi ed, a Notary Public for the State of Montana, personally appeared � known to me to be the person who name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same. In witness whereof, I have set my hand and affixed my Notarial Seal the day and year first above written. C4 E rtary Pu�Iorof Montana JENNIFER M. vol_xERT Notarial seal Residing at: state of %Aontana _&A,aL My Commission expires: � a� PROPOSED DECLARATION OF COVENANTS, CONDITIONS, RESTRICTIONS &EASEMENTS FOR ORCHARD VILLAGE THIS DECLARATION of Covenants, Conditions, Restrictions & Easements for Orchard Village, is made this day of , 2004, by Orcka#&Village, L.L.P. a Montana limited liability partnership. (hereinafter referred to,..,as "Declarant") WINESSETH: WHEREAS, Declarant is the owner of the,al property Montana, to be developed and known as Orchard Village; and WHEREAS, Declarant is desirous of subjectij real property to the Covenants, Conditions, Restrictions & Easements hers er set forth, each of which is r and are for the benefit of said property and for each owner thereof, and shall insure to the benefit of and pass with said property, and etch and every parcel :thereof, and shall apply to and bind the successors in interest, and;owner thi f; NOW THEREFQR,E tfe Declarant hereby declares that the real property described in Article Isand shI be held, transferred, sold and conveyed subject to the Covenants, Conditions, Zestrictla-s & Easements hereinafter set forth. CT t Fo�erfy. The reaiproperty=which is and shall be held, conveyed, transferred and sold subject to the Cove' ants,, Conditions, Restrictions & Easements hereinafter set forth is situated; n the Couniy of Flathead, State of Montana, and is described on Exhibit A hereto, which b ,.$is reference is incorporated herein, and which is the land encompassed by the plat entitled Orchard Village. No other property, other than that described above, shall be deemed subject to this Declaration unless and until specifically made subject thereto. DEFINITIONS 1.2.1 "Articles" means the Articles of Incorporation of the Association, as amended from time to time. Page 1 of 29 1.2.2 "Assessments" means the Common Expense Assessments and Special Assessments levied and assessed against each Lot pursuant to Article 7 of this Declaration. 1.2.3 "Assessments Lien" mans the lien granted to the Association to secure the payment of Assessments, monetary penalties and other charges owed to the Association. 1.2.4 "Association" means Orchard Village Owners Association, a Montana nonprofit corporation., its successors and assigns. 1.2.5 "Board of Directors" means the Board'bf Directors of the Association. 1.2.6 "Bound Party" means the Deoiaxnt the Assoxation, its officers, and directors, all Lot Owners, and Members, supers, vendors and oterPersons subject to this Declaration that agree to be bound by the terns of this Declaration Plat. time to time Bound Party. than the 1.2.7 "Buildings" means the 1.2.11 "C;ammi the Association;. to of the Any Botxd Party as buildings on the as amended from a claim against any other all portions of the Subdivision other uses" means expenditures made by or financial ith any allocations to reserves, including, without limitation, .the cost of in 'ection, maintenance, management, operation, repair and p replacement°ofthe Commonroperty and all Improvements thereon, including clustered mailboxes, prrvatidewalks and parking areas, fences, gates and those exterior parts of the Buildings, which the Association has the responsibility of maintaining, repairing and replacing; (ii)the cos i cif sewer, centrally metered utilities and trash removal which are the Common Property; (iii) the cost of insurance premiums for fire, liability, workers' compensation, errors and omissions and directors, officers and agents liability, and any other insurance that may be required for the Association or that the Board of Directors determines advisable to obtain, the costs of bonding the members of the Board of Directors, and the cost of compensation, wages, materials, services, supplies, and other expenses required for the administration., operation, maintenance and repair of the common Property, including landscape renovation and maintenance; (iv) the costs of rendering to the Unit Owners all services required to be rendered by the Association under the Orchard Village Documents (v) such other funds as may be necessary to Page 2 of 29 provide general operating reserves and reserves for contingencies and replacements deemed appropriate by the Board of Directors; and (vi) the cost of any other items incurred by the Association for any reason whatsoever in connection with the common Property for the common benefit of the Lot Owners. 1.2.12 "Common Expense Assessment" means the assessment levied against the Lots pursuant to Section 7.2 of this Declaration. 1.2.13 "Common Expense Liability" means the liability for common expenses allocated to each Lot by this Declaration. 1.2.14 "Declaration" means this declaration . f covenants, conditions, restrictions and easements as amended from time to time.,:;,:: 1.2.15 "Development Rights" means ahy right or coi,4h nation of rights reserved by or granted to the Declarant in this Declaration of covenants, conditions, restrictions and easements to do any of the following: (i) Common Property within the Add real estate to the Create (iii) Amend restrictions and easements during the other applicable law, or to correct any existing or constructed, Subdivision,, including, hoops and pales pave; kind. Lots, Property or Limited =61 to comply with any the Declaration provided �U,physical structure, fixture or facility 11d on the land included in the ings, private drives, walkways, basketball plants, trees and shrubs of every type and .neans the real property located in Flathead County, n Exhibit A as Lots l through 14, attached to this buildings and other Improvements located thereon. include Persons having an interest in a Lot merely as security for the performance of an obligation, or lessee or tenant of a Unit. Lot Owner shall include a purchaser under a contract for the conveyance of real property, a contract for deed, a contract to convey, an agreement for sale or any similar contract subject to Montana Law. Lot Owner shall not include a purchaser under a purchase contract and receipt, escrow instructions or similar executory contracts which are intended to control the rights and obligations of the parties to executory contracts pending the closing of a sale or purchase transaction. Page 3 of 29 1.2.19 "Member- means any Person who is or becomes a member of the Association. 1.2.20 "Orchard Village Documents" means this Declaration and the Articles, Bylaws, and the Rules. 1.2.21 "Period of Declarant Control" means the time period commencing on the date this Declaration is recorded with the County Recorder of Flathead County, Montana, and ending on the earlier of: (i) (90) days after the conveyance of seventy-five (75%) of the Lots which may Lot Owners other than the Declarant; or (ii) four (4) years after Declarant has ceased to Offer Lots for sale in the ordinary course of business. 1.2.22 "Person" means a natural person:; cdiporatiori, business trust, estate trust, partnership, Limited Liability Company, association, joint velure, government, governmental subdivision or agen or other legal or comxnarial�ntity. 1.2.23 "Plat" means the Subdivision ?l for Orchard Village, a Subdivision, which plat has been recorded in Book _fMaps, page , records of Flathead County, Montana, and any ar ondments, suppleir s or corrections thereto. 1.2.24 "Purchaser" meant any Peon other lhian the Declarant, who by means of a voluntary transfer becomes a Lot drier 1.2.25 ` Respond" Any Bound Party that has received notice of a claim for damages �°om�,ny otler'Bound Party rights resei Subdivision m 1.2.27" "S by or gram :to do any and regulations adopted by the to time. )ec, ant Rights" means any right or combination of a Declarant in this Declaration or by the Montana following: (z Construct Improvements provided for in this Declaration or shown on the Plat; (ii) Exercise any Development Right; (iii) Maintain management office and signs advertising the Units, lots, buildings and or units for rent. (iv) Use easement through the Common Property for the purpose of making Improvements within the Subdivision; and (v) Appoint or remove any office of the Association or any member of the board of Directors during the Period of Declarant Control. Page 4 of 29 1.2.28 "Subdivision" means the entire property including all lots & common Property. 1.2.29 "Unit" means a single dwelling unit in a 4-plex; on a lot. ARTICLE 2 ALLOCATION OF PERCENTAGE INTERESTS, VOTES AND COMMON EXPENSE LIABILITIES 2.1 Allocation of Common Pro e Interesf"d Common Expense Liabilities. The allocation of undivided interests in the Common Property atd rn„Lability for the Common Expenses of the Association shall be allocated1111Cqually amor the Lots. Accordingly, the initial interest in the Common Expenses of the Assocation for each Lot shall be 1/141' upon the Effective Date. 2.2 Allocation of Votes in the Association The total votes in the Association shall be equal to the number of Lots in the R�division. The votes in the Association shall be allocated equally among all the Lots "With each Lot having one (1) vote. ARTICLE 3 3.1 Utilitv`�Easeriient There is hereby created an easement upon, across, over and under theomrrion Property �r reasonable ingress, egress, installation, replacing, repairing:°fir maintai ... of all utilities, including, but not limited to, gas, water, sever, telephone amble television and electricity. By virtue of this easement, it shall' 13e expressly perzn�sible for the providing utility company to erect and maintain the necessary equipment on the orron Property, but no sewers, electrical lines, water lines, or other utility or service lines may be installed or located on the Common Property except as initially designed =approved and constructed by the Declarant or as approved by the Board of Drreclbrs This easement shall in noway affect any other recorded easements on the Common Property. 3.2 Easements for Ingress and ElZress. There is hereby created easements for ingress and egress for pedestrian traffic over, through and across sidewalks, paths, parking areas, and lanes that from time to time may exist upon the Common Property. There is also created an casement for ingress and egress for pedestrian and vehicular traffic over, through and across such driveways and parking areas as from time to time may be paved and intended for such purposes. Such easements shall run in favor of and be for the benefit of the Lot Owners and occupants of the Units and their guests, families, tenants and invitees. Page 5 of 29 3.3 Lot Owners' Easements of Eniovment. 3.3.1 Every Lot Owner shall have a right and easement of enjoyment in and to the Common Property, which right and easement shall be appurtenant to and shall pass with the title to every Lot subject to the following provisions: (i) The right of the Association to adopt reasonable rules and regulations governing the use of the Common Property; (ii) All rights and easements sit foith in this Declaration including, but not limited to, the rights and easements granted to the Declarant by Section 3.4 of this Declaratzc�ti, (iii) The right of the Association t6 suspend the right of a Lot Owner and any resident of his Unit to use the Common Property for any period during which the Lot Owner or Unit Resident rsn violation of any provision of this Declaratiomry 3.3.2 If a Unit is leased or rented;` -the lessee and the members of his family residing with the lessee shall have the right W', se the Common Property during the terra of the lease. 3.3.3 The guests and mnv tees of any mq-tuber or other person entitled to use the Common Property pursuant tc S bsection 3 3A of this Declaration or of any lessee who is entitled to use the Common'I'r©peyxdrsuant to Subsection 3.3.2 of this Declaration may usethe Caznmon Propearty. The Board of Directors shall have the right to limit the number of guefi and invitees, who may use the Common Property at any one time and ray restrict thi;�-"use of the Common Property by guests and invitees to certain specified times. 3.3.4, lot Oner's,iht and easement of enjoyment in and to the Common Pr6peft.y,shall not q conveyed, transferred, alienated or encumbered separate and apart from a Lot. Such right and easement of enjoyment in and to the Co i� db' Property shall ; deemed . 6 be conveyed, transferred, alienated or encumbered upon the sal�pf any Lot, notwithstanding that the description in the instrument of conveyance `transfer, alienation or encumbrance may not refer to such right and easement. 3.4 ' clarants Rigbts and Easements. 3.4.1 Declarant shall have the right and an easement on and over the Common Property to construct the Common Property and the Buildings shown on the Plat and all other Improvements the Declarant may deem necessary, and to use the Common Property and any Units owned by Declarant for construction or renovation related purposes including the storage of tools, machinery, equipment, building materials, appliances, supplies and fixtures, and the performance of work in the Subdivision. Page 6 of 29 3.4.2 Declarant shall have the right and an easement on, over and under those portions of the Common Property not located within the Buildings for the purpose of those portions of the Common Property not located within the Buildings for the purpose of maintaining and correcting drainage of surface, roof or storm water. The easement created by this Subsection expressly includes the right to cut any trees, bushes, or shrubbery, to grade the soil or to take any other action reasonably necessary. 3.5 Common Property Easement in Favor of the Association. The Conm- on Property shall be subject to an easement in favor of the Association and the agents, employees and independent contractors of the Association f rt,,the purpose of the inspection, upkeep, maintenance, repair and the replacement of Comrnon Property and for the purpose of exercising all rights of the Association, and discharging all obligations of the Association. 3.5.1 For the replacement of pipes, electrical, telephone w and all other utility lines and conduits which across or through a portion of the Common 1 3.5.2 For the install replacement of lighting; fixtures, electrical r' installations which are a part of or serve a� Common Property adjacent to such Buildirl maintenance, use, removal or replacement a interfere with the c(T on use of;any part o either the thermal or acoustical character of weaken the Buildings maintenance, ';removal or of or serve any Lot aiewhich pass repair, Anarntenance, use, removal or 4cles, panel bt r& and other electrical Alffig but which face into a part of a ,vid djbdtlhe installation, repair, such item does not unreasonably Common Property, adversely affect uildings, or impair or structurally ARTICLE 4 OCCUPANCY RESTRICTION 4.1 Resfde atial'�Use. All Lots and Units shall be used, improved and devoted exclusively to residefi al use. No trade or business may be conducted on any Lot or in or from any Unit, except that a Lot Owner or other resident of a Unit may conduct a business activity within a Unit so long as; (i) the existence or operation of the business activity is not apparent or detectable by sight, sound or smell from outside the Unit; (ii) the business activity does not involve persons coming on to the Unit or the door-to-door solicitation of residents in the Subdivision, and {iv) the business activity is consistent with the residential character of the Subdivision and does not constitute a nuisance or a hazardous or offensive use or threaten the security or safety of other residents in the Subdivision, as may be determined from time to time in the sole discretion of the Board of Directors. The terms "business" and "trade" as used in this Section shalt be construed Page 7 of 29 to have ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider's family and for which the provider receives a fee, compensation or other form of consideration, regardless of whether; (1) such activity is engaged in full or part time, (ii) such activity is intended or does generate a profit; or (iii) a license if required for such activity. The leasing of a Unit by the Lot Owner thereof shall not be considered a trade or business within the meaning of this Section. 4.2 Antennas. The Board of Directors shall regulate, tothe extent permitted under federal, state and local law, any antenna, aerial, satellite television dish or other device for the transmission or reception of television or radio dknals or any other form of electromagnetic radiation proposed to be erected, used or rnaIiif ed outdoors on any portion of the subdivision whether attached to a Building or structure" ,or otherwise. To the extent permitted by applicable law, the prior approval of the Boarcof Directors shall be required for the installation, use or maintenance'af any such device, which approval the Board may grant upon the satisfaction of cextain conditions including, hilt mat limited to, the size, placement, height, means of installati6 ,rid screening of such devices. 4.3 Utility Service. Except for lines, wires anal>devices existing on the Subdivision as of the date of this Declaration and mainter`ance, and replacement of the same, no lines, wires, or other devices f,transmission of electric current or power, including telephone, television, d' .radio signals, shall be erected, placed or maintained anywhere in or upodibe subdivision ftless they are installed and maintained undergroun& br concealed in, unifier, or on Bul Iaings or other structures permitted under this Declaration ,No provision hereof shall be deemed to forbid the erection of temporary power or Telephone structures incident to the construction of Buildings or structures perrnttteel uuder this Declaration. 4.4 1Cmpr4V means aid Alterations. Any Lot Owner may make nonstructural additions, alterations and mprovernent within their Building without the prior written appro`vd U the Board of Utrectors, but such Lot Owner shall, to the extent permitted under Montana Iaw, be responsible for any damage to the Common Property which results from any such alterations, additions or improvements. No Lot Owner shall make any structural add pns, alterations or improvements within a Building, unless prior to the comencemenfof each addition, alteration or improvement, the Lot Owner receives the prior written apprval of the Board of D irectors, which approval shall only be granted if the Board of Directors affirmatively finds that the proposed addition, alteration or improvement is aesthetically pleasing and in harmony with the surrounding improvements. No Lot Owner shall make any addition, alteration or improvement to the Common Property without the prior written approval of the Board of Directors. 4.5 Trash Containers and Collection. No garbage or trash shall be placed or kept on the Lots or common areas except in the containers provided in the common collection areas. The Board of Directors shall have the right to require all Owners to Page 8 of 29 place trash and garbage in containers located in designated areas. No incinerators shall be kept or maintained in any Unit. 4.6 Machinery and Equipment. No machinery or equipment of any kind shall be placed, operated or maintained upon the Subdivision except such machinery or equipment as is usual and customary in connection with the use, maintenance or construction of buildings, improvements or structures which are within the uses permitted by this Declaration, and except that which Declarant or the Association may require for the construction, operation, repair and maintenance of the Common Property, 4.7 Animals. No animals, birds, fowl, poultry or livestock shall be maintained or kept in any Units or on any other portion of the Subdivision except that Permitted Pets may be kept or maintained in a Unit. Permitted Pets may, be kept solely as an assistant to an individual with a disability and not for conunercial purposes. For urposes of this Section, a "Permitted Pet' shall mean a seeing eye dog,:or other geri&41 y recognized special assistance pet. Notwithstanding the foregping, the Board of Directors is authorized to determine, in its sole discretion and on a cas€ 7by-case basis, hether any particular animal or pet is to be considered as a " &h. erally recognized special assistance pet". No permitted pets shall be allowed to make an unreasonable amount of noise cause an odor, or to become a nuisance All.,do feet in length when outside a Unit or oil directly under the Unit Occupants contra Unit Occupants or guests of a Unit to re pets. Any Unit or Common Property wh all times be kept in a neafand.clean coed confinement, or training of any animal or Common Propert which the Unit is gs shall be kepfibn a leash not to exceed six (b) 4. y,Common Property and all dogs shall be I at all times. It shall b the responsibility of all rriove immediately any droppings from permitted ere:a permitted p;t:zs kept or maintained shall at itioz ' No structure for the care, housing, Unitso as to be be maintained on any portion of the from the exterior of the Buildings in 4.8 Tem orar ®ecu`ancv: No trailer, tent, shack, garage, or other structure, and no ternporaryjmprove ent of any kind shall be used at any time for residence ei er temporarily or permanently. Temporary buildings or structures used during construction of buildings or structures approved by the Board of Directors shall be permitted but mustbe rerraoued promptly upon completion of the construction of the building or structure 4.9 Clothes Drying Facilities. Outside clotheslines or other outside facilities for drying or airing clothes shall not be erected, placed or maintained in the Subdivision. 4.0 Mineral Exploration. No portion of the Subdivision shall be used in any manner to explore for or to remove any water, oil, or other Hydrocarbons, minerals, of any kind, gravel, earth, or any earth substance of any kind. Page 9 of 29 4.1.1 Diseases and Insects. No Lot Owner shall permit anything or condition to exist upon the Subdivision which could induce, breed or harbor infectious plant diseases or noxious plant diseases or noxious insects. 4.12 Trucks Trailers Campers and Boats. No commercial truck over 10,000 lb Gross Vehicle Weight, mobile home, travel trailer, tent trailer, trailer, camper shell, detached camper, recreational vehicle, boat, boat trailer, or other similar equipment or vehicle may be parked, kept, maintained, constructed, reconstructed, or repaired on any part of the Subdivision except in garages if they are provided as part of a Unit. 4.13 Motor Vehicles. Except for emergency repairs, no dutamobile, motorcycle, motorbike or other motor vehicle shall be constructed, reconstructed, serviced or repaired on any part of the Subdivision, except_fn the garages if they are provided for the Unit and no inoperable vehicle may be A6red or parked on any portion of the Subdivision, except in garages if they are provided for the Unfts ,,.No automobile, motorcycle, motorbike or other motor vehicle shalfbe parked upon any part of the Subdivision, except in parking spaces or garages As may exist from time to Mpn 6n the Common Property. 4.14 Towing of Vehicles. The Board of Direet ts, shall have the right to have any truck, mobile home, travel trailer °lent -trailer, trailer, eaft per shell, detached camper, recreational vehicle, boat, boat trailer or sim b'r equipment or vdii le or any automobile, motorcycle, motorbike, or other motor v6icle pan ed,, kept, .d ntained, constructed or reconstructed or repaired in violation of th ;,Subdivisron.Dgcuments towed away at the sole cost and expense of the owner of the vehicle or equipment. Any expense incurred by the association in connection with the towing"Off any vehicle or equipment shall be paid to the Association upon -demand by the owner of the vehicle or equipment. 4.1 >;SiLyns. No without -,',Written n of "For Sale" or "For Rent" shall be e tenof of any nit or Building or any other portion of the Subdivision approval, of the Board, of Directors. awful Use. No offensive, or unlawful use shall be made of any part of ,All valid Wvs, zoning ordinances, and regulations of all governmental nsdiction over the Subdivision shall be observed. Any violation of such lin ces:,o regulations shall be a violation of this Declaration. 4.17 Nuisances and Offensive Activity. No nuisance shall be permitted to exist or operate upon the Subdivision and no activity shall be conducted upon the Subdivision which is offensive or detrimental, or is an annoyance to any portion of the Subdivision or any Unit occupants. No exterior speakers, horns, whistles, bells, or other sound devices, except security or other emergency devices used exclusively for security or emergency purposes, shall be located, used or placed on the Subdivision. 4.18 Window Coverings. No reflective materials, including, but without limitation, aluminum foil, reflective screens or glass, mirrors or similar items, shall be Page 10 of 29 installed or placed upon the outside or inside of any windows of a Unit without prior written approval of the Board of Directors. 4.19 Limitation on Leasin_ of Units. .All leases shall be in writing and shall provide that the terms of the lease shall be subject in all respects to the provisions of the Subdivision Documents, and any failure by the lessee to comply with the terms of the Subdivision documents shall be a default under the lease. Upon leasing of a Unit, a Building Owner shall promptly, within five (5) days, notify the Association of the commencement date and termination date of the lease and the names of each lessee or other person who will be occupying the Unit during the term 4.20 Declarant Approval Re uired. After of the Period of Declarant Control and for so long as the Declarant owns y Lot, aplr� action for which the consent or approval of the Board of Directors is pi a red under the declaration may be taken only if such action is also consented to or approved by the Declarant. 5 MAINTENANCE AND REPAIR -OF BUILDINGS AND COMMON PROPERTY 5.1 Duties of the Association Thy A sociation shall htspect, maintain, repair and replace all Common Property. The cclst ofall such inspection, maintenance, repairs and replacements shall be paid for by the Asocation 5.1.1 Exterior'MAintenance. In addition to maintenance upon the Common Property; the Association shall provide exterior maintenance upon each lot which is subject to assessment exeunder, and is limited to the following specific items, painting of sidmga soff ts, anterior dooms and' a nbs; repair and/or replacement ©f roofing, gutters, rior lr„fixtures and siding. Such exterior maintenance shall not include improvement built`or placed by an Owner within the patio or yard space or repairs or leplacements caused by d& of the perils covered by a standard form fire insurance ptscy with extended coverage endorsement thereon, or caused by flood, earthquake 6,f4ther acts of O-od or terrorism, including, but not limited to glass surfaces and or air condttir ing units. 5.2. Duties of'Lot Owners. Except as provided in Section 5.1.1 of this Article, all repairs, replacements and maintenance items within a Lot shall be the responsibility of each Lot Owner; provided however, that if a Lot Owner shall fail to maintain or make the repairs or replacements which are the responsibility of such Lot Owner, then, upon vote of the majority of the Board of Directors, and after not less than thirty (30) days notice to the Lot ®caner, the Association shall have the right, but not the obligation., to enter upon or into the Lot or Building and perform the required maintenance, repair or replacement. The cost of any such maintenance, repair or replacement shall be assessed against the non -performing Lot Owner pursuant to Subsection 7.2.5 of the Declaration. Page 11 of 29 5.3 Repair or Restoration Necessitated by Owner. Each Lot Owner shall be liable to the Association, to the extent permitted by Montana law, for any damage to the Common Property or the Improvements, landscaping or equipment thereon, which results from the negligence or willful conduct of the Lot Owner or his guests and/or tenants. The cost to the Association of any such repair, maintenance or replacements required by such act of a Lot Owner, his guests and/or their tenants shall be paid by the Lot Owner, upon demand, to the Association. The Association may enforce collection of any such amounts in the same manner and to be the same extent as provided for this Declaration for the collection of the Assessments. 5.4 Lot Owner's Failure to Maintain. if a Lot Owne fails to maintain in good condition and repair his Building or any Common Proper which he is obligated to maintain under sections 5.2 & 5.3 of this Declaration and,the relied maintenance, repair or replacement is not performed within fifteen (I 5)�,days after written notice has been given to the Lot Owner by the Association, the .Association shallhave the right, but not the obligation, to perform the required maintenance, repair or replacer ent. The cost of anv such maintenance, repair or replacement wall be assessed against the nor= performing Lot Owner pursuant to Subsection 7 2 o thelaration. TICLE b THE ASSOCIATION, RIGHTS IA";DUTIES, AND :MEMBERSHIP 6.1 Ri hts Powers and Dti`ties. of Asps da' tion. No later than the date on which the first Lot is:dnveed to a Purchaser, the Association shall be organized as a nonprofit Montana Corporation ';The Association shall be the entity through which the Lot Owners shall act the Association shall have,,such rights, powers and duties as are w prescribed by the laand as set;'forth,in the Subdivision Documents together with such rights, powe and duties as may be de'emedafeasonably necessary in order to effectuate the objectives and -.purposes of',,"tZe, Association as set forth in this Declaration. The Assocrti'on shall have the right tor"finance capital improvements in the Subdivision by encumbering fixture Assessments, if su ch action is approved by written consent or affirmative ,I.e of the Lot O vners"representing more than fifty percent (50%) of the votes of the Association. U.,, less the Subdivision Documents specifically require a vote of the Members, approvals or actions to be given or taken by the Association shall be valid if given or tak en bythe Board. Notwithstanding anything herein to the contrary, so long as the Declarant ovens any Lot, the prior written consent of the Declarant shall be required for any decision by the Association to establish self -management when professional management had previously been in place. The Association has the specific duty to make available to the Declarant, Mortgage Holders, Lot Owners, and Eligible .Insurers or Guarantors, current copies of the Declaration, Bylaws, Articles, Rules and other books, records and financial statements of the Association as may be requested from time to time by such parties. Such requests shall be in writing, and the Association shall have the right to charge for copying expenses. Page 12 of 29 6.2 Directors and Off eers. 6.2.1 During the period of Declarant Control, the Declarant shall have the right to appoint and remove the members of the Board of Directors and the officers of the Association who may not be Lot Owners. 6.2.2 Upon the termination of the Period of Declarant Control, the Lot Owners shall elect the Board of Directors, which must consist of at least five (5) members, at the least a majority of whom must be Lot Owners. The Board of Directors elected by the Lot Owners shall then elect the officers of the Assoe.iation. 6.3 Rules. The Board of Directors, from time to provisions of this Declaration and Montana law, may a regulations (collectively, the "Rules"). The Rules may govern the use of any area by any Lot Owner, his guei Owner; provided, however, that the Rules may not'unrE Owners and shall not be inconsistent with this .Dt6claral copy of the Rules as they may from time to time be, adc be mailed or otherwise delivered to each Lot Owner 'a 6.4 Composition of Me heii ,Each Lot O-" Association. The membership of the Ass6e49n. at all all the Lot Owners. A Lot Owner (which znay mnclide_ automatically, upon becoming the Lot Owner theeof, and shall remain a Member of the Associatiotf until suc and subject to the 6 , and repeal rules and her things, restrict and nantof such Lot y discrimrnate among Lot Articles or Bylaws. A wended or repealed, shall e recorded. All be a Member of the slll'consist exclusively of ant) of a Lot shall ember of the Association as such Lot Owner's ownership ceases fora v reasom, at which time, such Lot Owner's membership in the Association shall autottmatically'eease. 6 5,. Personal Liahih N 61" er th6"Declarant nor any member of the Board of Directors or"nfanytbinrrmittee of the Association, any officer of the Association nor any tnanaer or other employe of the Ash©,ciation shall be personally liable to any Member, or to'ny puler person or'erifity, znclu�ling the Association, for any damage, or loss or prejudice suffered or claimed: on account of any act, omission, error or negligence of the Declarant, the association,,:the Board of Directors, the manager, any representative or employee of the ssociatipn or any committee, committee member or officer of the Association; provided, however, the limitations set forth in this Section shall not apply any person who has failed to act in good faith or has engaged in willful or intentional misconduct. 6.6 Implied Ri2hts.The Association may exercise any right or privilege given to the Association expressly by the Subdivision Documents and every other right or privilege reasonably to be implied from the existence of any right or privilege given to the Association by the Subdivision Documents or reasonably necessary to effectuate any such right or privilege. Page 13 of 29 6.7 Voting Rights. Subject to Section 6.8 below, each Lot Owner of a Lot, including Declarant, shall be entitled to cast one (1) vote for each Lot owned by such Lot Owner, on any Association matter which is put to vote of the membership in accordance with this Declaration, the Articles and/or the Bylaws. 6.8 Voting Procedures. No change in the ownership of a Lot shall be effective for voting purposes unless and until the Board is given actual written notice of such change and is provided satisfactory proof thereof. The vote for each such Lot must be cast as a unit, and fractional votes shall not be allowed. In the event that Lot is owned by more than one (1) Person and such Lot Owners are unable to agree, among themselves as to how their vote or votes shall be cast, they shall lose their right -to emote on the matter in question. If any Member casts a vote representing a certain Lots it will thereafter be conclusively presumed for all purposes that such Lot Owner wa`s acting with the authority and consent of all other Lot Owners of the same Lot unless objectipszuthereto is made at the time the vote is cast. In the event more than one...,(".I) y©te is cast by a� Vlem er for a particular Lot, none of the votes shall be counted aria all of such Merri]50s�votes shall be deemed void. 6.9 Transfer of Membership. The than Declarant shall not be assigned,.transferr way except upon transfer of the ownei hip of transferee of the ownership to the Lot. A tr by deed, intestate succession, testaixaentary di record, or such other legal under or pursuant to Iaws' transfer shall be void An membership appurtenanttt Lot shall notify the Associ Lot Owner of a Lat.. 6.10 Suspe %nts or other as now spa ::,State of Montana. Any attempt to make a prohibited fr of ownership to a Lot shall operate to transfer the d dot to the new Lot Owner thereof. Each Purchaser of a f iiis purchase within ten (10) days after becoming the ► 646 Ri hts. If any Lot Owner fails to pay any due to the Association under the Subdivision Documents within fift' (15) days after such payment is due or if any Lot Owner violates any other provision o`'th` SubdivisionT]ocuments and such violation is not cured within fifteen (I 5) days after theAssociation notifies the Lot Owner of the violation, the Board of Directors shall have their ght to suspend such Lot Owner's right to vote until such time as all payments including interest and attorneys fees, are Brought current, and until any other infraction or vi"blations of the Subdivision Documents are corrected. 6.11 :architectural Committee. The Board of Directors may establish an Architectural Committee consisting of not less that three (3) members appointed by the Board of Directors to regulate the external design, appearance. use and maintenance of each Building and to perform such other functions and duties as are imposed upon it by the Subdivision Documents or the Board of Directors. Page 14 of 29 7.2 Common Expense Assessment. 7.2.1 For each fiscal year of the Association commencing with the fiscal year in which the first Lot is conveyed to a Purchaser, the total amount of the estimated Common Expenses set forth in the budget adopted by the Board of Directors (except for the Common Expenses which are to be assessed against less than all of the Lots pursuant to Subsection 7.2.5 of the Declaration) shall be assessed against each. Lot as to which provisions of the Declaration then are effective, in proportion to the Lots Common Expense Liability as set forth in Section 2.1 of this Declaration. The amount of the Common Expense Assessment assessed pursuant to this Subsection 7.2.1 shall be in the sole discretion of the Board of Directors. If the Board of Directors A.ermines during any fiscal year that its funds budgeted or available for that fiscal ;ydr are, or will, become inadequate to meet all Common Expenses for any reason, lnclug, without limitation, nonpayment of Assessments by Members, it may increases the Coon Expense Assessment for that fiscal year and the revised Commoi Expense Ass""ent shall commence on the date designated by the Board of. 7ireetors. 7.2.2 The maximum Common Expense Assessment for each al year of the Association shall be as follows: (i) Until January f o f the year immediately following the conveyance of the first Lot to a Purchaser, die maximum annuul Common Expense Assessment for each Lot shall be $1,000 0. ( i)1 ' iiar ,and after January I of the year immediately following the conveyance of the first Lot to"' Turchaser, the ,hoard of Directors may, without a vote of the Members, deteff"n the maa"irnu n annual assessment. 7 2 3.The Cozfimon Expense Assessment shall commence as to all Lots on the first d y`of their rxnth folt ng the conveyance of the first lot to a Purchaser. The first Common Expense ,A`ssessrrient mall be adjusted according to the number of months remaining in the fiscal year of the Association. The Board of Directors may require that the Commdir Expense Assessment br Special Assessments be paid in installments. 7 2 4: Except�as otherwise expressly provided for in this Declaration, all Common Expenses sh 4,,.be assessed against all of the Lots in accordance with Subsection 7.2.1 of the Declaration. 7.2.5 If any Common Expense is caused by the misconduct of any Lot Owner, their guest and/or tenant, or expenses in excess of insurance limits for the reconstruction of a total or partial Building loss, the Association shall assess that Common Expense exclusively against his lot. 7.2.6 The personal obligation of a Lot Owner for Assessments, monetary penalties and other fees and charges levied against his Lot shall not pass to the Lot Owner's successors in title unless expressly assumed by thew. Page 16 of 29 7.3 Special Assessments. In addition to Common Expense Assessments, the Association may levy, in any fiscal year of the Association, a special assessment applicable to that fiscal year only for the purpose of defraying, in whole or in part, the cost of any construction, reconstrtmction, repair or replacement of a capital improvement of the Common Property, including fixtures and personal property related thereto or for any other lawful Application purpose, provided that any Special Assessment shall have first been approved by Lot Owners representing two-thirds (2/3) of the votes in the Association who are voting in person or by proxy at a meeting duly called for such. purpose. Unless otherwise specified by the Board of Directors, Special Assessments shall be due thirty (30) days after they are levied by the Associataort `ar d notice of the Special Assessment is given to the Lot Owners. 7.4 Effect of Non); Association. 7.4.1 Any Assessment, carry it is not paid within fifteen (15) days after the Assess delinquent and shall bear interest from the date of deli (10%) per annum. No Owner may w.xve or otherwise assessments or charges provided for Y4fe>J abandonment of his Lot and Building. 7.4.2 All Assessmei charges imposed or levied -',,""against any lot Assessment Lien. The"recorl"' of this D non-use t of an Asses -,tit, which :came due shall 'be deemed at the rate of ten percent liability for the wommon Property or ietary penalties and other fees and Owner shall be secured by an :ion constitutes record notice and perfection of the Assessment Li4h, and no further recordation of any claim of lien shall be required. Although nt3t required? order to perfect the Assessment Lien, the Associationshall have the nght but thea� not figation, to record a notice setting forth the amount cifriy delinquent assessments, monetary penalties or other fees or charges imposed or levied against ;a Lot orthe_Lot Owner which are secured by the Assessment 7.4.3 :The Association shall have the right, at its option, to enforce collection of any d�ulquent'ssessments, monetary penalties and all other fees and charges owed to the sodiation in any manner allowed by law including, but not limited to: (i) bringing an actt'r at law against the Lot Owner personally obligated to pay the delinquent amounts and such action may be brought without waiving the Assessment Lien securing any such delinquent amounts; or (ii) bringing an action to foreclose its Assessment Lien against the Lot in the manner provided by law for the foreclosure of a realty mortgage. The Association shall have the power to bid in at any foreclosure sale and to purchase, acquire, hold, lease, mortgage and convey any and all Lots purchased at such sale. 7.5 Subordination of Assessment Dien to Mortanes. The Assessment Lien shall be subordinate to the lien of any First Mortgage. Any First Mortgagee or any Page 17 of 2q other party acquiring title or coming into possession of a Lot through foreclosure of a First Mortgage, purchase at a foreclosure sale or trustee sale, or through any equivalent proceedings, such as, but not limited to, the taking of a deed in lieu of foreclosure, shall acquire title free and clear of any claims for unpaid Assessments, monetary penalties and other fees and charges against the Lot which became payable prior to such sale or transfer. Any delinquent Assessments, monetary penalties and other fees and charges which are extinguished pursuant to this Section may be reallocated and assessed to all Lots as a Common Expense. Any Assessments, monetary penalties and other fees and charges against the Lot which accrue prior to such sale or transfer shall remain the obligation of the defaulting Lot Owner. 7.7 Certificate of Pavment. The Association oh written request shall furnish to a lien holder, Lot Owner or person designated by,,,a Lot Owner a recordable statement setting forth the amount of unpaid Assessments against h.Lot. T he statements shall be furnished within twenty (20) business days after receipt of th�rquest and will be binding on the Association, the Board of Directors`and every Lot Owner .The Association may charge a reasonable fee in an amount established by the Bof Directors for each such statement. ARTICLE 8 CIS:' l" ' 8A Purchase Insurance. The Association shall have the power to purchase insurance for either or both the common areas and all or any part of the living d s units for such risks tau ch companies, and in such amounts as the Board of Directors of the Association sh "determine and to assess the premium costs thereof in any manner that the Board of Directors of the Association shall deem to be equitable. Premiumm costs for risks associated with the common area shall be part of the uniform assessment provided in Article V and risks associated with individual dwelling units shall be special assessments attaching only to such dwelling. 8.2 Liability Insurance. Public liability and common area property damage insurance shall be purchased by the Board, or acquired by assignment from Declarant, as promptly as possible following its election, and shall be maintained in force at all times. The premium thereon is to be paid out of the Association's funds. The Page IS of 29 insurance shall be carried in reputable companies authorized to do business in Montana. The minimum amounts of coverage shall be $500,000.00 for personal injury to any one person, $1,000,000.00 for personal injury to any number of persons sustained in any one accident or mishap, and $100,000.00 property damage. The policy shall insure against, but may not be limited to, injury or damage occurring in the common area. 8.2.1 Fire Insurance - Master Policv for Common Area. A master or blanket fire insurance policy shall also be purchased or acquired by the Board as promptly as possible following its election, and shall hereafter be maintained in force at all times, the premium thereon to be paid out of the Association's funds. Said insurance shall be carried with reputable companies qualified to do business in the State of Montana, and shall insure against loss from fire and other;,hards therein covered, for the fall insurable value of all of the permanent improvements a oa the common area. Said policy may contain extended coverage and replace ant costs e dorsernents, coverage, special form endorsement, stipulated arnount clause, or clauses to permit cash settlement covering full value of the improvemeqt� m the event of pariMi.destruction. The policy shall be in such amounts as shall be de ermined, 'rom time to ttmb b. the Board. The policy shall name all owners and mrtagees 904e subject property, or any of it, as insured, as their respective interest may endorsement in favor of the trustee hereinafter c contain a loss payable c. Mortgagee's Rights. With respect to insurance coverage under p graph) hereof, any mortgagee of record shall have the option to apply insurance pro"Q-edS payable to it in reduction of the obligation secured by its mortgage. 8.3 Damage and Destruction-, Reconstruction.. If any permanent improvement comprising a part of the properties, whether owned by an individual owner or by the Association, shall be damaged by fire or other casualty covered by insurance, the proceeds of all such insurance policies shall be paid to the Association to be applied as hereinafter provided. If the damage or destruction shall be one or more living units, the Board of Directors of the Association shall enter into a contract for the repair or reconstruction of the damaged improvements, upon such terms as the Board feels is in the best interest of the individual owner as well as the Association. In the event that the Page 19 of 29 proceeds from the insurance policies payable as a result of the loss to an individual living unit shall be insufficient for the repair or reconstruction of such living unit, the deficiency shall be promptly paid by the owner of such living unit, failing which, such amount shall become a special charge and assessment against such living unit pursuant to the provision of Article 7 hereof. In the event of damage or destruction of any improvements upon the common areas, the Board of Directors shall contract for repair or reconstruction of such improvements and if the proceeds of any insurance policies payable as a result of such loss are insufficient for such repair or reconstruction, the deficiency shall be the subject of a special assessment which shall be approved by a vote of the owners as provided in Article 7 hereof. The insurance proceeds shall be paid to the contractor or contractors designated by the Board. All repairs or reconstruction shall be made -in accordance with original plans and specifications therefore, or according to such:revised plays and specifications as may be approved by the Board of Direcorr, ofih'e,Association, In the event that improvements in and upon the,,common arei s shall not be rebuilt because the cost of rebuilding shall exceed.tlie available insurance proceeds, and the members shall fail to approve a special assessment to cover the deficiency, the Board of Directors shall then cause any remaining portion such tprovernent to,'be removed and the area cleared and landscaped in the most efftertnd aesthetically pleasing manner possible. The lot may be sold by the owner an any subsequent owner would be required to fund reconstruction of the lxurlding within 12 inont s of purchase, in full compliance with this Article. If the Board of Directors of the with the repair or reconsti upon an individually own( of an individual lot""or biul occurs, the owner of sucl contract for such>:repair or required 'to the cc that th B-Oard of or destroyed'isupi all owners and su simple majority's repair and reconsi not requiring to r( owner or the insti to proceed in good faith of any damaged or destroyed improvement whether T. upon common area, and in any event if reconstruction not commenced, within sixty (60) days after the casualty ed i provenment nay proceed to negotiate and execute a trucfi ark_ ithe Association who shall receive any );,such loss, shall pay such proceeds, to the extent lraetors selected by such individual owner. In the event rectos :shall fait td proceed in good faith to repair or rebuild damaged ements upon the common areas, any individual owner in writing to Assocza on rnav act. through its rnembershio. to proceed upon a of the members present and voting to enter into contracts for the onf any damaged improvements. The excess of any proceeds, r or restore an improvement shall be paid by the Association to the ion that shall have paid the premium for such insurance coverage. 8.4 Other Duties and Powers. The Association and its Board of Directors acting in its behalf shall obtain, provide and pay for any other materials, supplies, furniture, labor, services, maintenance, repairs, structural alterations, insurance, or pay any taxes or assessments which the Board is required to secure or pay for pursuant to the terms of these Restrictions; provided that if any such materials, supplies, furniture, labor, services, maintenance, repairs, structural alterations, insurance, taxes or assessments are specially provided for particular lots, the cost thereof shall be specially Page 20 of 29 assessed to the owners of such lots. The Association may likewise pay any amount necessary to discharge any lien or encumbrance levied against the entire properties or any part thereof which may, in the opinion of the Board, constitute a lien against the common areas, rather than merely against the interests therein of a particular owner, provided that where one or more owners are responsible for the existence of such lien, they shall be jointly and severally liable for the cost of discharging it, and any costs incurred by the Board by reason of said lien or liens shall be specially assessed to said owners, ARTICLE 9 9.1 RIGHTS OF FIRST MORTGAGEES..; he holders of first mortgages or trust indentures on Lots may, j ointly or singly, pad taxes or other charges which are in default, and which may or have become a charge agarn any Common Property, and may pay overdue premiums on hazard'nsurance policre _r secure new hazard insurance coverage upon the lapse of a pqlcy for such Common Property, and the holders of first mortgages or trust indentures rnak�.ng such payments shall h�szu,�ed immediate reimbursement therefore from the 6wn s Assaeiation. 9.1.1 No actio,may be taken Association, or any successor or entity t Owners or any other party priority over' trust indentures, in the case of a distribu condemnation awards for losses to or tal 9.1 2 Az�irst � approve additions r amend ner6l, to the or amendments are not negative resporsse:.th Any addition or az3 considered material clarific i#`on only. have tl of the to Developer, by the Owner's ect of giving the Lot Iders of first mortgages or )fisurance proceeds or 6 Property. rtgagee who receives a written request to eclaratiQn, Articles or Bylaws, which additions not sliver or mail to the request party a hlbe deemed to have approved such request: icon, Articles or Bylaws shall not be of correcting technical errors or for 9.1.3 ;The approvals required by this Section shall not apply to amendments that ray be excuted by the Declarant in the exercise of its Development Rights. 9.2 RitZht of Inspection of Records. Any Lot Owner, First Mortgagee or Eligible Insurer or Guarantor will, upon written request, be entitled to (i) inspect the current copies of the Subdivision Documents and the books, records and financial statements of the Association during normal business hours; (ii) receive written notice of all meetings of the Members of the Association and be permitted to designate a representative to attend all such meetings. Page-7 I of 29 9.3 Liens Prior to First Mort a e. All taxes, assessments, and charges which may become liens prior to the First Mortgage under local law shall relate only to the individual Lot and not to the Subdivision as a whole. ARTICLE 10 GENERAL PROVISIONS 11.1 Enforcement. The Association, or any Lot Owner, shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter impos&'hy the provisions of the Subdivision Documents. Failure by the Association or by y Lot Owner to enforce any covenant or restrictions contained in the Subdivision Igoe*its shall in no event be deemed a waiver of the right to do so thereafter. 11.2 Seyerability. Invalidation qf` one of these covd'bU, is or restrictions by judgment or court order shall in no .way affect any other pro**n, which shall remain in full force and effect. _.. 11.3 Duration. The covenants and res 6tions of this Declaration shall run with and bind the Subdivision for tern of twenty(2Q)`-y6ars from the date this Declaration is recorded, after which time th shall be automalxally extended for successive periods of ten (10) years. 11.4 Notices All notices, demands, statements or other communications required to be given to ©r served an a Lot Owner under this Declaration shall be in writing and shall be deemed to Have been duly given and served if delivered personally or sent by US mail. If deli ry rs made by mail, it shall be deemed to have been received by the person to whom the notice was addressed'6 the earlier of the date the notice is actually reecved ar three (3) da after the iaotice is mailed. Notices shall be addressed to each person at the address given by such person to the Association for the purpose of service ofsuch notice or'tothe address obtained from the County Tax Assessors Office. A Lot Owned>zpay change his address on file with the Association for receipt of notices by dcliverm a written notice of change of address to the Association pursuant to this Section. If a Lot z :owned l y more than one person, notice to one of the Lot Owners shall constitute notice to. all Lot Owners of the same Lot. Each Lot Owner shall file his correct mailing address with the Association and shall promptly notify the Association in writing of any subsequent change of address. 11.5 BindinLr Effect. By acceptance of a deed or by acquiring any ownership interest in any portion of the Subdivision, each Verson, for himself, his heirs, personal representatives, successors, transferees and assigns, binds himself, his heirs, personal representatives, successors, transferees and assigns to all of the provisions, restrictions, covenants, conditions, easements, rules, and regulations now or hereafter imposed by the Subdivision Documents and any amendments thereof. In addition, each such person by so doing thereby acknowledges that the Subdivision Documents set forth Page 22 of 29 a general scheme for the improvement and development of the real property covered thereby and hereby evidences their interest that all the restrictions, conditions, covenants, easements, rules and regulations contained in the Subdivision Documents shall run with the land and be binding; on all subsequent and future Lot Owners, grantees, purchasers, assignees, and transferecs thereof. Furthermore, each such person fully understands and acknowledges that the Subdivision Documents shall be mutually beneficial, prohibitive and enforceable by the various subsequent and future Lot Owners. Declarant, its successors, assignees and grantees agree that the Lots and the membership in the Association and the other rights created by the Subdivision Documents shall not be separated or separately conveyed, and each shall be deemed to be conveyed or encumbered with its respective Lot even though the description «xta th€ ,.instrument of conveyance or encumbrance may refer to the Lot. 11.6 Gender. The singular, wherever construed to mean the plural when applicable, and the required to make the provisions of this Declaration ap individuals, or men or women, shall in all cases expressed. 11.7 Topic Headings.,,,rhe marginal c contained in the Declaration are for can`enzence only the contents of the sections of this Declrafittan ;;.. 11.8 Survival of Lia Association shall not r liability or obligation during the period of s which the Association of or in anv w Bann Y in this Declaration, shall be ecessary graihi.hatical changes y either to corporations or med as though rn each base fully headings of the sections lefine, limit or construe bilr The ;€eirr�znatr of membership in the se any such former lot Owner or Member from any or in any„way connected with, the Association or membership, or impair any rights or remedies iunst such former Lot Owner or Member arising out owzeslip or membership and the covenants and 11,9 Construction I' the event of any discrepancies, inconsistencies or conflicts 6eeen the provpns of the Declaration and the Articles, Bylaws or the Association'Tt es, the provrsIions of this Declaration shall prevail. 11 l ;Joist and Several Liabilities. In the case of joint ownership of a Lot the liabilities an"bligations of each of the joint Lot Owners set forth in, or imposed by, the Subdivision Documents shall be joint and several. 11.11 Guests and 'Tenants. Each Lot Owner shall be responsible for compliance by his agents, tenants, guests, invitees, licensees and their respective servants' agents, and employees with the provision of the Subdivision Documents. A Lot Owner's failure to insure compliance by such Persons shall be grounds for the same action available to the Association or any other Lot Owner by reason of such Lot Owner's own noncompliance. Page 23 of 29 11.12 Attoroev's Fees. In the event the Declarant, the Association or any Lot Owner employs an attorney or attorneys to enforce a lien or to collect any amounts due from a Lot Owner or to enforce compliance with or recover damages for any violation or noncompliance with the subdivision documents, the prevailing party in any such action shall be entitled to recover from the other party his reasonable attorneys' fees incurred in the action. 11.13 Number of Days. In computing the number of days for purposes of any provisions of the Subdivision Documents, all days shall be counted including Saturdays, Sundays and holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or holiday, then the next day sfi ft be deemed to be the next day which is not a Saturday, Sunday or holiday. 11.14 Notice of Violation. The Association shall hake the right to record a written notice of a violation by any Lot Owner of any restriction or provision of the Subdivision Documents. The notice shall be executed and acknowledged bey an officer of the Association and shall contain substantially t1.h�:,Ifollowjng information " name of the Lot Owner; (ii) the legal description of the Lotagainst which the notice i;being recorded; (iii) a brief description of the nature of the violation; (iv) a statement that the notice is being recorded by the association pursuant tot sDeclaration; and (v) a statement of the specific steps which r t be taken by the Lot Owner to cure the violation. Recordation of a Notice of VrolaLn,n .shall serve as a notice of the Lot Owner and to any subsequent purchaser of the Lot that thexe ts. a violation of the provisions of the Subdivision Documents. If, after the r e0rdation �fs�k�-""notice, it is determined by the Association that the Nii wion referred to:iri'the notice hoes not exist or that the actual violation referred to Wthe noGbe";has been cured, the Association shall record a Notice of Compliance whrch''sh 1..,state the legal description of the Lot against which the Notice of Violation was recorded, the recrng.,,data of the Votice of Violation, and shall say that the violation_ ,referred to in the Nofirce of Vic fatIon has been cured, or if such be the case, that it did not exist 11.15 Resdlution of'1 is sites Between Bound Parties. Declarant, the Associatrop, its officers, anddirectors all Lot Owners and Members, builder, real estate brokers and oth,Persons szbject to this Declaration agree, to encourage the amicable resolution of disputes involving any Bound Party without the emotional and financial costs of litigation, b srgai �g a copy of this Declaration and making it an integral part of any contract, agreement` or covenant entered into between any and/or all of the Bound Parties, Declarant, the Declarant Affiliates, Builder and each Lot Owner by accepting a deed for the common areas or a lot, as the case may be, and the Association agrees to have any dispute resolved according to the provisions of Subsection 11.20.1 and Subsection 11.20.2 waive their respective rights to pursue any dispute in any manner other than as provided in this Section. Such parties acknowledge that by agreeing to resolve all disputes as provided in Subsection 11.20.1 and Subsection 11.20.2 they are giving up their respective rights to have such disputes tried before a court or jury. Accordingly, each Bound Party covenants and agrees to submit any all claims, grievances Page 24 of 29 or disputes described in Subsection 11.20.1 (collectively "Claims") to the procedures set forth in Subsection 11,20.2. 11.15.1 Unless specifically exempted below in Subsection 11.15.2 all Claims arising out of or related to the interpretation, application or enforcement of the Declarations, or the rights, obligations and duties of any Bound Party under the Declaration or relating to the design, construction, and installation of the Improvements on the Subdivision shall be subject to the provisions of Subsection 11.15.2 I LIS.2 The following are Mandatory Procedures for all Claims of Bound Parties. (a) Any Bound Party imtiatrtg a against any other Bound Party (respondent) referred to herein being individually reforred to as a "Party" or collectively referred to as the "Parties" shall notify eachepondent r?riting (the "Notice"), stating plainly and concisely: (1) the ri tftp of tl'Klaim, includni the Persons involved and Respondent's role in the Claizi�,,:ev authority out of which the Claim arises Respondent to between in person a�.c "confer for requested in' g, ace appoint a representative (iii) (iv) ways to the legal basthe Claim (i.e., the specific x :r The prop�sl remedy; and Tie fact that the Claimant will meet with resolve the Claim. VW1~toi td Parties agree that any dispute arising negotiation and mediation according to the following; (i) The Parties shall make every effort to meet ose of resolving the Claim by good faith negotiation. If ;d by a copy of the Notice, the Board of Directors may the Parties in negotiation. (ii) If the Parties do not resolve the Claim within thirty (30) days after'the date of Notice (or within such other period as may be agreed upon by the parties) negotiations will terminate and the Claimant shall have an additional thirty (30) days to submit the Claim to mediation under the auspices of and independent mediation service designated by the Association, or if the Parties otherwise agree, to an independent agency providing dispute resolution services with substantial experience with comparable disputes. (Ili) If Claimant does not submit the Claim to mediation within such time, or does not appear for mediation, Claimant shall be deemed Page 25 of 29 to have waived the Claim, and Respondent shall be released and discharged from any and all liability to Claimant on account of such Claim; provided, nothing herein shall release or discharge Respondent from any liability to any Person other than the Claimant. (iv) Any settlement of the Claim through mediation shall be documented in writing by the mediator and signed by the Parties. If the Parties do not settle the Claim within thirty (30) days after submission of the matter to mediation, or within such other time as determined by the mediator or agreed to by the Parties, the mediator shall issue a notice of termination ("Termination of Mediation Notice") of the mediation proceedings. The Termination of Mediation Notice shall set forth that the Parties have an impasse and the date that the med dtzori was terminated. (iv) Each Party mediation, including attorneys' fees, and each Party sha rendered by the mediator. If the Parties agree to a res€i17 negotiation or mediation in accordance with this S6sec thereafter fails to abide by the terms of such agreement, or initiate administrative proceedings to enforce su;ag again comply with the procedures set forth in this Su1as Party taking the action to enforce the;;ggreement shall b` complying Party (or if more than one non complying Pz rata) all cost incurred in enforcing such agr60.erlt, inch attorney's fee and related court cost. be entitled to submit: be (1) proceed in K be governed by the F be conducted zn,acca. ten t`IU1 d parties an thereafter The parties Sh- ys after wrztte 4*1c to agre Commercial Arbifi practices in the are determine whether is own cost of the d"lly all charges of any'Cl"airri through .1.20.2 and any Party any other Park may file suit Brit without the:'eed to 1�1.20.2 In such event, the led to recover from the non - rpm all such Parties pro ithout limitation, e limitation in determining any Claim. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. In any proceeding, the arbitrator shall decide (by documents only or with a hearing at the arbitrator's discretion) any pre - hearing motions for summary adjudication. In any arbitration proceeding, discovery shall be permitted and shall be governed by the Montana Rules of Civil Procedure. All discoveries must be completed no later than twenty (20) days before the hearing date and within one hundred and eighty (1 SO) of the commencement of arbitration proceedings. Any request for an extension of the discovery periods and any discovery disputes, shall be subject to final determination by the arbitrator upon a showing that the request for Page 26 of 29 discovery is essential for the party's presentation and that no alternative means for obtaining information is available. The arbitrator shall award cost and expenses of the arbitration proceeding in accordance with the provisions of this forbearance agreement. The laws of the State of Montana shall apply in any arbitration proceeding, without regard to its conflict of laws rules. (d) Notwithstanding anything contained herein to the contrary and in addition to any requirements prescribed by law, the Association shall not submit a Claim against the Declarant, a Declarant Affiliate, or any Designated Builder to binding arbitration upon Termination of Mediation, and shall not file any action against Declarant, or Declarant Affiliate, or any Designated Builder arismg €nit of or related to the design, construction, condition or sale of any part of the $4bclivision or any Improvements thereon, until all of the following have occuded (i) In advance ote meeting deebed in Subsection 11.15.2 (d)(ii) below, the Board of Dint tors has provided fd1)sclosure in writing to all Members of all material informati,e : relatingto the Claim or tiog. The material information shall include, without linrmtatzn ibe a statement that descrs the manner in which the action will be funded and a statexner that -describes, notices, offers to settle or responses to offers to settle made either by th&association or the Declarant, the Declarant Affiliate, or the Designa#ed Builder, if appf aae. (ii) The A§§.&iation has;held a duly called meeting of its Members and the Board of Directors""", which a xr q ty of the Lot Owners, voting in person or by proxy, authorize the submitfat of the Clain to arbitration or the filing of the action, as applicable. i The Beard of Directors has authorized the submittal of the Claim to arbtration or the f ding of the action as applicable. 11,1 3 Not1N-ithstandt4g the foregoing Subsection 11,15.1 and Subsection 11 152 urttess all parties t]iereto otherwise agree, the following shall not be Claims and shall not be subject to the prcivisioris of Subsection 11.15.1 and Subsection 11.15.2 which shall be known a Claims E empt from Dispute: (a) Any suit or action by the Association against any Bound Party for delinquent Assessments; (b) Any suit between or among Owners, which does not include Declarant, a Designated Builder or the Association as a party, if such suit asserts a Claim which would constitute a cause of action independent of the Declaration; (c) Any suit in which any indispensable party is not a Bound Party and; Page 27 of 29 (d) Any suit as to which any applicable statute of limitations has expired or would expire within one hundred and eighty (180) days of giving notice required by Subsection 11.15.2. ORCHARD VILLAGE, LLP Montana limited liability partnership Michael K. Bl Its: General P By: ae Blend Its:.. mites Partner By: Its: STATE Clark ited Partner The fgt.ggoing instrument was acknowledged before me this day of 200C, y , the General Partner of the Orchard Village, LLP, a lvi taua`limited liability partnership on behalf of the company. Notary Public My Commission Expires: STATE OF MONTANA ) )ss. Page 28 of 29 County of Flathead ) The foregoing instrument was acknowledged before me this day of , 2004, by , the Limited Partner of the Orchard Village, LLP, a Montana limited liability partnership on behalf of the company. STATE OF MONTANA ) )ss. County of Flathead ) The foregoing instrument was a , 2004, by Village, LLP, a Montana limited liability Notary Public My Commission d before me this da miterl,Partner of the Orch Behalf of the company. lic Village, LL Montana 114ted liability partnership on behalf of the company. Notary Public My Commission Expires; Page 29 of 29 Tri-City Planning Office 17 Second Street East -- Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fax: (406) 751-1858 tricity@centu rytel.net MEMORANDUM TO: Kalispell City Staff and Other Interested Parties FROM: Narda A. Wilson, Senior Planner RE: February 10, 2004 - Kalispell Planning Board Meeting i ]DATE: January 21, 2004 These items will go before the Site Development Review Committee in the Kalispell Building Department on the following dates: January 22, 2004 - Initial comments January 29, 2004 - Review Comments Final Comments By: • February 4, 2004 so that they can be incorporated into the staff report. These matters will go before the Kalispell City Planning Board on February 10, 2004 for public hearing. Please bring your comments to the above referenced site review committee meeting(s) or submit your comments in writing or by phone, prior to February 4, 2004 so that they can be incorporated into the staff report to the planning board. You can reach me at 751-1852 or e-mail at tricitynardgLaxenturytel.net. If you need additional information regarding any of these items, please call me. Thank you for taking the time to review and comment on these items. I . A request for preliminary plat approval of Orchard Village, a subdivision proposed by Orchard Village LLC to create a 14 lot residential subdivision intended for apartment development on a total of 3.18 acres. The property is located on the south side of Appleway and west of Meridian Read. The property is zoned B-2, General Business, which lists multi -family dwellings as a permitted use. c: w/attachments: Jim Stewart, Fire Dept. Mike Baker. Parks and Rec Chris Kukulski, City Manager PJ. Sorenson, Zoning Administrator Roger Krauss, Police Dept. Frank Castles, Civil Engineer Providing Community Planning Assistance To: = City of Kalispell - City of Columbia Falls - City of Whitefish = Referrals KPB 2 / 10 / 04 mtg January 21, 2003 Page 2 Jinn Hansz, Director Public Works Sandy Wheeler, Community Redevelopment Susan Moyer, Community Development Director Craig Kerzman, Chief Building Inspector Charles Harball, City Attorney School District S Applicant / Owner H:\...,AGREF\KALISPELL\KPBi 13REF.DOC Tri-City Planning Office 17 Second Street East -Suite 211 Kalispell, Montana 59901 Phone: (406) 751-1850 Fair: (406) 751-1858 tricity�a-,,,centynKtel.net www.t-ricityplanning-mt.com You are being sera this notice because you are a property owner within 150 feet of the proposed project noted below and will be most directly affected by its development. You have an opportunity to present your comments and concerns at the meeting noted below. You may contact this office for additional information. NOTICE OF PUBLIC HEARING KALISP'ELL CITY PLANNING BOARD AND ZONING COMMISSION The regular meeting of the Kalispell City Planning Board and Zoning Commission is scheduled for Tuesday, February 10, 2004 beginning at 7:00 PM in the Kalispell City Council Chambers, Kalispell City Mall, 312 First Avenue East, Kalispell. The planning board will hold a public hearing and take public comments on the following agenda items. The Board will make a recommendation to the Kalispell City Council who will take final action. 1. Continued from the January meeting: A request for an initial zoning designation of R-3, Single Family Residential and P-1, Public, with a Planned Unit Development (PUD) overlay upon annexation to the City of Kalispell on approximately 8.43 acres proposed by Gardner Investments, LLC for property located on the north side of California. Street between Fifth Ave EN and Seventh Ave EN. In conjunction with the annexation and proposed PUD zoning designation, a six unit subdivision for the property has been submitted concurrently. The property can be described as Assessors Tract 23A in Section 8, Township 28 North, Range 21 West, P.M.M., Flathead County, Montana. 2. Continued from the January meeting: A request for preliminary plat approval of Terrace View Estates proposed by Gardner Investments, LLC, a six lot residential subdivision consisting of two duplex townhouses units and two single- family residences on 1.61 acres and a 6.82 park area for a total of 8.43 acres. The property can be described, as Assessors Tract 23A in Section 8, Township 28 North, Range 21 West, P.M.M., Flathead County; Montana. 3. A request for preliminary plat approval. of Orchard Tillage, a subdivision proposed by Orchard Village LLC to create a 14 lot residential subdivision intended for apartment development on a total of 3.18 acres. The property is located on the south side of Appleivay and west of Meridian load. The property is zoned D-2, General Business, which lists multi -family dwellings as a permitted use. The property can be described as Assessors Tract 15 in Section 13, Township 28 North, Range 22 West, P.M.M., Flathead County, .Montana. Providing Cammupity Planning Assistance To: City of Columbia Palls $ c1ty of Kalispell. - Czty of Whitefish Kalispell Planning Board public hearing novice Page 2 4. An amendment to the -Kalispell Zoning Ordinance irdtiated by the City of Kalispell to address general "housekeeping' amendments to Chapter 27.24, Sign Regulations. The proposed amendments are the result of work sessions held with. the Kalispell Planning Board and are intended to bring consistency to the regulations, address temporary signs and ethers and to streamline the enforcement process. The proposed changes will result in insig_nifxcant impacts in relation to sign regulations within the Kalispell city limits. Documents pertaining to these agenda items are on file for public inspection at the Tri-City Planning Office, 17 Second Street Bast, Suite 211, Kalispell, MT 59901, and are available for public review during regular office hours. Interested persons are encouraged to attend the hearing and make their views and concerns known to the Board. Written comments may be submitted to the Tri-City Planning Office at the above address, prior to the date of the hearing, or you may contact Narda Nilson, Senior Planner at (406) 751-1850 or e-mail at tiicitvna.rda(@.centurvtel.net for additional information_ TCPO Major Subdai Won 2003 CERTIFICATION APPLICANT: ORCHARD VILLAGE LLC ! BLEND DESIGN & BUILD TCPO FILE NO: KPP-04-01 I, the undersigned certify that I did this date mail via certified or registered mail. a copy of the attached notice to the following list of landowners a joinnin the property lines of the property that is to be subdivided. Date" z X S� Assessor's # S-T-R Lot/Tract# ORCHARD VILLAGE LLC BLEND DESIGN & BUILD P.O. BOX 7505 KALISPELL, MT 59904 AND ATTACHED LAST Property Owner/Wail Address ORCHARD VILLAGE LLP MONTANA MAPPING ASSOC. GENESIS DEVELOPMENTS LLC BLEND DESIGN & BUILD 115 VALLEY VIEW DRIVE P.O. BOX 458 P.O. BOX 7505 KALISPELL, MT 5901 SOMERS, MT 59932-3490 KALISPELL, MT 59904 CITY OF KALISPELL P.O. BOX 1997 KALISPELL, MT 59903-1997 PINE, STANLEY DELORIS GROUP LLC 208 LAKE SHORE DR KALISPELL, MT 59901-7458 RED LION PROPERTIES INC AD% RED LION HOTELS INC W 201 NORTH RIVER DR SPOKANE, WA 99201 METZGER, MARK P.O. BOX 1332 KALISPELL, MT 59903-1332 G R KIRK CO 201 ST HELENS AVE TACOMA, WA 98402-2519 4 B"S RESTAURANTS INC BOB -A LOUIE'S INC 1330 HWY 2 WEST KALISPELL, MT 59901-3496 GREAT NORTHERN RAILWAY % PROPERTY TAX DEPT P.O. BOX 961089 FORT WORTH, TX 76161 DELORIS GROUP LLC 178 E BLANCHARD LAKE RD WHITEFISH, MT 59937 MONTANA FOREST PRODUCTS P.O. BOX 7038 KALISPELL, MT 59904--0510 HEATON, RUSSELL & JULIE 275 CEDAR MILL RD KALISPELL, 59901 DUVAL, DAVID 15 APPLEWAY DR KALISPELL, MT 59901-3490 MYHRE ADVERTISING AD% B. A. POWELL WELLS FARGO PCS P.O. BOX 597 HELENA, MT 59624 ST. PAUL RAILWAY CO % BN SANTA FE RR P.O. BOX 961089 FORT WORTH, TX 76161 UNITED WAY OF FLATHEAD COUNTY INC_ P.O. BOX 7217 KALISPELL, MT 59904-0217 HANSON, ALVIN & JANICE 445 ORCHARD RIDGE KALISPELL, MT 59901 SCOTT, JERRY & LAVERNE 10 SOUTH MERIDIAN RD KALISPELL, MT 59901-3846 HORN, MICHAEL 70 UNIVERSITY PLACE APT ##5 NEW YORK, NY 10030