1. Request to Waive Preliminary Plat Conditions - Ken Madsen■
Charles A. Harball office of City Attorney
City Attorney 201 First Avenue Bast
P.O. Box 1997
Kalispell, MT 59903-1997
TO: mayor Pamela B. Kennedy
and :Kalispell City Council
FROM** Charles Harball, City Attorney
Jaynes H. Patrick, City Manager
Tel 406.758.7977
Fax 406.758.7979
charbalI @kalispeil.corn
SUBJECT. Request for Consideration by Ken. Madsen — Sidewalks,
Parks in Lieu Payment
AMETING DATE: Monday, May 19, 2008 — City Council workshop
BACKGROUND: The City has been approached by :Ken Madsen, a landowner
with a parcel located in the City adjacent to western Acres, who has applied for a
minor subdivision which would create three lots where there currently. exists one lot
with a home. Mr. Madsen has three issues he would like the City Council to
address.
1) Sidewalks. The City staff would require that the applicant install
sidewalks where they currently do not exist. The sidewalks that he would install
would not connect to any other existing sidewalks. He is therefore requesting that
he not be required to make this expenditure.
2) Parks in Lieu Pa ent. The last state legislature amended the statutes
to now allow local governments to require minor subdivisions to pay a parks in lieu
payment. See attached.
(a) The City staff would assess a parks in lieu payment equal to
$50,000 per acre of park requirement based upon a conservative estimate of existing
local market prices. The applicant may choose to obtain an appraisal if it may be
proved a lesser amount. In this case the applicant believes that $50,000 is
excessive.
(b) The statute (MICA 76-3-301) broadly states that park dedication
may not (or may — this is permissive language) be required for a minor subdivision
or a subdivision in which only one additional parcel is created. The applicant wishes
the City to apply the park in lieu payment to only apply to the two additional lots
being created and not to the lot with the existing home.
May 15, 2008
Page - 2
RECONWEE RATION: The City staff recommends the following approach be
taken:
1) Sidewalks. Council should consider the applicant's request to forego
constructing the sidewalks. Council has the authority to require a payment in lieu
of sidewalks to be used to bring sidewalks into this area so that the pedestrian
system may be constructed an a more "whole fabric" fashion.
2) Parks in Lieu Pa ent a Staff believes that the $50,000 per acre
assessment is rationally and reasonably set based upon the real costs of the City to
acquire parkland. staff further believes that since the applicant has the
opportunity to acquire an appraisal to prove otherwise, fundamental fairness in the
system is present.
Parrs in Lieu Pa ent b staff agrees with the applicant that an
appropriate policy would be to not assess the lot with the existing structure in a
minor subdivision but to only assess the additional lots created. Council will note
that the legislature specifically left discretion to local government to not make and
parrs in lieu assessment against a two lot subdivision. Although this issue does not
apply to the current applicant, it will come forth in the future and the Council
should be prepared to give City staff some direction of its policy in that regard.
FISCAL EFFECTS: Depends upon the policy determination of the City Council.
Respectfully submitted,
9 ^
�.M
Charles Har 1, City .Attorney
James H. Patrick, City Manager
Office of City Attorney
City of Kalispell
76-3-621 Park dedication requirement.
(1) Except as provided in 76--3-509 or subsections (2), (3), and (6) through (8) of this
section, a subdivider shall dedicate to the governing body a cash or land donation equal
to:
(a) 11 % of the area of the land proposed to be subdivided into parcels of one-half acre or
smaller;
(b) 7.5 % of the area of the land proposed to be subdivided into parcels larger than one-
half acre and not larger than 1 acre;
(c) 5% of the area of the land proposed to be subdivided into parcels larger than 1 acre
and not larger than 3 acres; and
(d) 2.5% of the area of the land proposed to be subdivided into parcels larger than 3 acres
and not larger than 5 acres.
(2) When a subdivision is located totally within an area for which density requirements
have been adopted pursuant to a growth policy under chapter 1 or pursuant to zoning
regulations under chapter 2, the governing body may establish park dedication
requirements based on the community need for parks and the development densities
identified in the growth policy or regulations. Park dedication requirements established
under this subsection are in lieu of those provided in subsection (1) and may not exceed
0.03 acres per dwelling unit.
(3) A park dedication rna� not..be required..for:
(a) a minor. subdivision;
(b) land proposed for subdivision into parcels larger than 5 acres;
(c) subdivision into parcels that are all nonresidential;
(d) a subdivision in which parcels are not created, except when that subdivision provides
permanent multiple spaces for recreational camping vehicles, mobile homes, or
condominiums; or
(e) a subdivision in. which.. only one additional parcel is. created.
(4) The governing body, in consultation with the subdivider and the planning board or
park board that has jurisdiction, may determine suitable locations for parks and
playgrounds and, giving due weight and consideration to the expressed preference of the
subdivider, may determine whether the park dedication must be a land donation, cash
donation, or a combination of both. When a combination of land donation and cash
donation is required, the cash donation may not exceed the proportional amount not
covered by the land donation.
(5) (a) In accordance with the provisions of subsections (5)(b) and (5)(c), the governing
body shall use the dedicated money or land for development, acquisition, or maintenance
of parks to serve the subdivision.
(b) The governing body may use the dedicated money to acquire, develop, or maintain,
within its jurisdiction, parrs or recreational areas or for the purchase of public open space
or conservation easements only if:
(i) the park, recreational area, open space, or conservation easement is within a
reasonably close proximity to the proposed subdivision; and
(ii) the governing body has formally adopted a park plan that establishes the needs and
procedures for use of the money.
(c) The governing body may not use more than 50% of the dedicated money for park
maintenance.
(6) The local governing body shall waive the park dedication requirement if:
(a) (i) the preliminary plat provides for a planned unit development or other development
with land permanently set aside for park and recreational uses sufficient to meet the needs
of the persons who will ultimately reside in the development; and
(ii) the area of the land and any improvements set aside for park and recreational
purposes equals or exceeds the area of the dedication required under subsection (1);
(b) (i) the preliminary plat provides long-term protection of critical wildlife habitat;
cultural, historical, or natural resources; agricultural interests; or aesthetic values; and
(ii) the area of the land proposed to be subdivided, by virtue of providing long-term
protection provided for in subsection (6)(b)(1), is reduced by an amount equal to or
exceeding the area of the dedication required under subsection (1);
(c) the area of the land proposed to be subdivided, by virtue of a combination of the
provisions of subsections (6)(a) and (6)(b), is reduced by an amount equal to or
exceeding the area of the dedication required under subsection (1); or
(d) (i) the subdivider provides for land outside of the subdivision to be set aside for park
and recreational uses sufficient to meet the needs of the persons who will ultimately
reside in the subdivision; and
(ii) the area of the land and any improvements set aside for park and recreational uses
equals or exceeds the area of dedication required under subsection (1).
(7) The local governing body may waive the park dedication requirement if:
(a) the subdivider provides land outside the subdivision that affords long-term protection
of critical wildlife habitat, cultural, historical, or natural resources, agricultural interests,
or aesthetic values; and
(b) the area of the land to be subject to long-term protection, as provided in subsection
(7)(a), equals or exceeds the area of the dedication required under subsection (1).
(8) Subject to the approval of the local governing body and acceptance by the school
district trustees, a subdivider may dedicate a land donation provided in subsection (1) to a
school district, adequate to be used for school facilities or buildings.
(9) For the purposes of this section:
(a) "cash donation" is the fair market value of the unsubdivided, unimproved land; and
(b) "dwelling unit" means a residential structure in which a person or persons reside.
(10) A land donation under this section may be inside or outside of the subdivision.
History
En. Sec. 9, Ch. 468, L. 1995; amd. Sec. 27, Ch. 582, L. 1999; amd. Sec. 8, Ch. 348, L.
2001; amd. Sec. 1, Ch. 469, L. 2003; amd. Sec. 2, Ch. 333, L. 2005.
PLANNING FORTT-tE F[.TTURE MQ�V'IANA
REPORT TO: Kalispell Mayor and City Council
FROM: Sean Conrad, Senior Planner
James H. Patrick, City Manager
Planning Department
201 V Avenue East
Kalispell, MT 59901
Phone: (406) 758-7940
Fax: (406) 758-7739
ww.kalis ell.e0ffi1 lannin
SUBJECT: Request by Kenneth Madsen. Jr. to waive a condition of
preliminary plat requiring that sidewalks be installed and the
boulevard be improved for a 3 lot subdivision at 1427 7th Avenue
West
DATE: May 19th work session.
BACKGROUND: Mr. Madsen owns an approximately �/2 acre lot at 1427 7th Avenue
West in Kalispell. The site contains a single family residence and he requested the
planning department waive the preliminary plat requirements for a 3 lot subdivision
on his property. Since the project is less than 5 lots and impacts are deemed to be
insignificant, the planning department agreed with Mr. Madsen and waived the
requirement for a preliminary plat application. Mr. Madsen would now proceed
directly to filing a final plat for council action once all the conditions of his waiver
have been completed. One of the conditions of approval required Mr. Madsen to
dedicate additional right-of-way along 7thAvenue west and upgrade his property
frontage along 7th Avenue west to the City of Kalispell's Design and Construction
Standards. specifically, Condition #7 requires Mr. Madsen to install a sidewalk and
improve the boulevard with street trees and seeding the approximately 122 feet along
his subdivision's frontage of 7th Avenue west.
In a letter to the council dated April 30, 2008 Mr. Madsen is protesting Condition #7.
Mr. Madsen's letter states that although several parcels have been brought into the
city recently, the requirement for sidewalks and an improved boulevard were not
placed on them. This is true, there have been three subdivisions during 2004 and
2005 along this southern portion of 7th Avenue west that were approved in which no
sidewalk or boulevard installation was required. However, in 2007 the planning
department waived the preliminary plat requirement for two subdivisions on the west
side of 7th Avenue west just north of Mr. Madsen's property. These two subdivisions
were required to dedicate additional right-of-way and install sidewalks and improve
the boulevard to city standards. The city council, at its April 21st meeting, approved
the final plat for Lot 2 of western Acres, one of the subdivisions approved by waiver of
preliminary plat in 2007. As part of the approval the council accepted a subdivision
improvement agreement for the construction of a sidewalk and improving the
boulevard with street trees along the proj ect's 7th Avenue west frontage.
Section. 3.1 LA of the Kalispell city Subdivision Regulations requires sidewalks or a
cash. -in -lieu payment to the City equivalent to the cost of the sidewalks in instances
where actual sidewalk construction is premature in all residential subdivisions.
Section 3.11. D of the regulations states that residential sideways shall be separated
from the street by a boulevard or open space. The City of Kalispell Design and
Construction Standards clarify that a boulevard is a minimum of S feet in width and
landscaped in accordance with the Kalispell Street Tree Ordinance. There are no
existing sidewalks in the immediate area as Mr. Madsen's letter points out however,
with the approval of the subdivision of Lot 2 of western Acres, a sidewalk will be
across the street from the subdivision. by June of 2009.
The city does not have a sidewalk waiver fund set up at this time where we could
administratively place the money if a cash in lieu payment is made. Staff also cannot
outright waive the sidewalk and boulevard condition. Therefore, staff suggested that
Mr. Madsen approach the council during a work session and see whether or not the
council is willing to waive condition #7.
RECOAEMMNDATION*. Tale Mr. Madsen's request under advisement and give staff
direction as to how we should proceed.
FISCAL EFFECTS: Depending on council direction, the outcome should be revenue
neutral.
ALTERNATIVES: As suggested by the City Council.
Respectfully s 'tted,
Sean Conrad James H. Patrick
Senior Planner City Manager
Report compiled: May 14, 2008
Attachment: Letter from Sean Conrad dated April 9, 2008
Letter from Ken Madsen dated April 30, 2008
Copy of preliminary plat
c: Theresa White, Kalispell City Clerk
City of Kalispell
Planning &Building Department
201 Is'Ave East, Kalispell, Montana 59901
Planing Telephone: (406) 758-7940
Building Telephone: (406) 758--7730
Fax: (406) 758-7739
website: www.ka.lispef.com
April 3, 2008.
Tien Madsen
12 3 7 Fifth Street west
Kalispell., MT 59901
Re: waiver of Prelimiriary Plat Approval -- Tract 8T6B in. Section 18, 'Township 23
North, Range 21 West
Dear Mr. Madsen.:
This letter is in response to your request for waiver of preliminary plat for a three lot
subdivision located on the ast side of 7thAvenue west. The address for the property is
1427 7thAvenue West M* Kalispell and can be legally described as -tract 8T6B located in.
the SW 1/4 of the SE 1/4 of Section 18, Township 28 North, Range 21 West, P.M.M. ,
Flathead County, Montana.
The site is 21, 52 5 square feet in size and contains an existing House with an attached
garage. The property is zoned R-4, Two --Family Residential, which is intended to
provide for residential development with nzniT um, lot areas: The property is proposed
to be divided into three separate lots. Two lots will. front 7th Avenue West,
approximately 6,000 and 6,095 square feet in size respectively, with the third lot being
a flag lot configuration 8,2OO square feet in size. The preliminary subdivision is shown
on the attached reap labeled Exhibit A.
C .r office can find that the proposed subdivision meets the preliminary plat waiver
c?.7-i Feria as provided for under Section. 2.08 of the Kalispell Subdivision. Regulations.
Specifically it meets the following criteria: (1) the subdivision contains five or fewer lots,
(2) there is no dedication, of streets or public or private p xkIand, (3) that the lots have
legal and physical access conforming to the subdivision regulations, (4) each lot has a.
suitable building site and there are no environmental hazards present; (5) municipal
sewer and water are adequate and in place; (6) that the subdivision complies with the
subdivision and current zoning regulations, and (7) that there will be no significant
impact on agriculture, agricultural water users, local services or the natural
enviror nzent.
Due to the relatively minor impacts that this subdivision poses, this office grants
preliminary plat approval subject to the 13 conditions outlined below.
Prior to final plat
1. That the final plat is M substantial compliance with the preliminary plat that was
waived.
2. Demonstrate that the existing buildings on the property that are to be retained
comply with the setback requirements of the R 4 zoning district. Buildings not
intended to be retained shall be removed prior to final plat.
3. Submit a scaled parldng plan for lot 2. The plan shall provide a paved driveway
and. a -minimurn of two off-street parking spaces in accordance with the Kalispell
Zoning Ordinance. The plan shall be reviewed and approved by the Planning
Department.
Note: The parking plan may include the use of a common driveway on. lot 3 to
allow parking on the east side of the existing house on lot 2.
4. The approved parking plan referenced in condition 3 -shall be installed.
5. The following note shall be placed on the final plat: "Property owner(s) shall waive
their right to protest the creation of a special improvement district for road
upgrades in the area to City standards which are impacted by this subdivision."
5. Adequate right-of-way shall be dedicated to the City of Kalispell along the west side
of the subdivision adjacent to the 7h Avenue west to ensure that thirty feet of
right-of-way exists between the platted centerline of 7th Avenue West and the new
east ' righ_ t--of-way of 7th Avenue west and shall be shown on the face of the final
plat.
7. The right-of-way along 7thAvenue west shall be improved to city standards or
adequately bonded for and shall include a landscaped boulevard and sidewalk.
The plan for improvements shall be reviewed and approved by the Public Works
Department and installed prior to final plat.
8. A municipal facilities exemption shall be obtained from the Montana Department
of Environmental Quality and a letter from the Kalispell Public Works
Department stating that municipal water and sewer are available and will be
provided to all lots. Existing and new utility easements shall be shown on the
final plat.
The requirements parkland dedication iremen.ts shall. be met with the payment of cash in lieu.
p �.
of parkland equal to 0.09 acres of land. The payment shall he based on the fair
market value of undivided, unimproved land.
On -going conditions
10. The access design for the lots shall meet the provisions outlined in Chapter 5 of the
International Fire Code regarding fire service features and the design shall be
reviewed and approved by the Kalispell Fire Departnent. Prior to combustible
construction, all-weather driving surfaces, water supply infrastructure, hydrants
and street signs need to be in place.
2
11. Prior to excavation or earthwork, a City Stormwater Management Permit
shall be approved and issued from.. the Kalispell Public works Department. In
accordance with Ordinance 1600, the permit shall include a permit application,
site reap, narrative describing the best management practices to be used and a
completed checklist. In addition to the City Stormwater Management Permit the
developer shall submit a copy of the state General Construction. Stormwater
Discharge Permit Notice of Intent (NOI) and Sto=water Pollution Prevention Plan
(SWPPP). At the time of final plat, the project engineer shall certify that the
development is in compliance with the approved City Stormwater Management
Permit
12. All areas disturbed during development shall be re -vegetated with a screed -free
r�aix immediately after development.
13. 'IT -Lis waiver of preliminary plat approval is valid for three years and will expire on
April. 10, 2011.
Waiver of preliminary plat approval does n.ot . constitute approval of the subdivision..
Please note that prior to final plat approval all requirements must be met per Chapters
2 and 3 of the Kalispell subdivision. Regulations. If you have any questions or
disagree with any of the above conditions please contact sae. Conditions which you
disagree with will be scheduled for a city council work session for the council to
determine whether the condition is appropriate or not.
Sincerely,
Sean Conrad
Senior Planner
Attachment: Exhibit A (sketch of preliminary plat)
3
To the Kalispell City Council
14 April, 2008
I own. a 21000+ square foot lot on. 7t' Avenue west. I am attempting to do a
minor subdivision creating two additional lots. These lots meet city requirements
and have received a waiver of preliminary plat from the planning department with
numerous conditions attached. I am seeping council guidance on several of these
conditions.
I am creating three lots where one currently exists. The existing lot has a house
on it and has been in the city for many years. As I understand it, I am the first
minor subdivision to be required to provide parkland. Applying a formula, I am
being asked to provide the cash equivalent of 0.09 acres of undeveloped
unimproved land. This amounts to 3 920 square feet or more than V2 of a city lot.
I feel this may be appropriate for parcels being brought into the city, but my lot
has been in the city for years. At the very least I should be given credit for one of
the lots since the entire parcel is not being created. one lot already exists.
Additionally, the value of undeveloped, unimproved land must be established by
the council. Iwould suggest to the council that this value be established by using
the Current tax appraisal of such land near the city. (See Attached)
I am also being asked to deed to the city additional right of way along 7th Avenue
West and to sidewalk and landscape the boulevard. Although several parcels
have been brought into the city recently, these requirements were not placed on
there. It seems unreasonable to demand private property unless a plan exists to
use that property. Although I agree sidewalks and boulevards would be very
desirable, I do not see there likely to occur in the foreseeable future. To construct
the only sidewalk within a 5 block radius at this time would only allow it to
deteriorate until the rest of the sidewalks were built. I have already agreed to
waive any protest of SIDs to improve streets and create sidewalks and boulevards
and I would ask the council to waive the right of way and sidewalk attachments.
As an aside comment, I have often read where the council is wondering why
affordable housing is not being created. This is what I am trying to do, but if I
were to apply the cost of the requirements being asked of one to each of the two
newly created lots, it would exceed $10,000 each. This is above the cost of
surveying and recording. If we add in impact fees along with the regulatory costs
of building, the cost is over $20,000 to each. lot. This does not include the
original price of the land or any construction costs. This is a regulatory cost alone
and is one imposed by the council and is one passed on to the homeowner.
Thanks you for your in ut and consideration,
Kenneth A Madsen Jr
I have researched most of the larger acreages available on the south side of
Kalispell within two miles of the city. It seems reasonable to use current taxable
values since the state claims these to represent current market although they look
low to me. To require me to pay an amount in excess of state value would seem
unfair since the city accepts state appraisal in setting my taxes.
OWR
SIZE
VALUE
Guest Family Trust
57 acres
155651
State of Montana.
150
61941
=wP
40
27,232
Nordtorne
295.340
1 18,43 0
Wise
75.800
17,861
The value the state places on its own land looks unreasonable low and I would not
protest throwing out that value in any calculations. I think it only fair to average
the rest and use that as the state approved value of one acre of unimproved,
undeveloped land.
To the Kalispell City Council
30 April, 2008
I own a 21000+ square foot lot on 7"' Avenue Nest. I am attempting to do a
minor subdivision creating two additional lots. These lots meet city requirements
and have received a waiver of preliminary plat from the punning department with
numerous conditions attached. I am seeking council guidance on one of these
conditions.
I am being asked to deed to the city additional right of way along 7t' Avenue
West and to sidewalk and landscape the boulevard. Although several parcels
have been brought into the city recently, these requirements were not placed on
them. It seems unreasonable to demand private property unless a plan exists to
use that property. Although I agree sidewalks and boulevards would be very
desirable, I do not see them likely to occur in the foreseeable future. I have no
problem deeding the additional right of way to the city. This seems to me to be a
reasonable long term planning tool. However, to construct the only sidewalk
within a S block radius at this time would only allow it to deteriorate until the rest
of the sidewalks are built. I have already agreed to waive any protest of SIDs to
improve streets and create sidewalks and boulevards and I would ask the council
to waive the sidewalk requirement in this particular case.
As an aside comment, I have often read where the council is wondering why
affordable housing is not being created. This is what I am trying to do, but if I
were to apply the cost of the requirements being asked of me to each of the two
newly created lots, it would exceed $10,000 each. This is above the cost of
surveying and recording. If we add in impact fees along with the regulatory costs
of building, the cost is over $20,000 to each lot. This does not include the
original price of the land nor any construction costs. This is a regulatory cost
alone and is one imposed by the council and is one passed on to the homeowner.
Thank you for your input and consideration,
Kenneth A Madsen Jr