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06-14-16 - Regular MeetingKALISPELL CITY PLANNING BOARD & ZONING COMMISSION MINUTES OF REGULAR MEETING DUNE 14, 2016 CALL TO ORDER AND ROLL The regular meeting of the Kalispell City Planning Board and CALL Zoning Commission was called to order at 6:00 p.m. Board members present were: Charles Pesola — Acting President, Rory Young, Steve Lorch, and Doug Kauffman; Ronalee Skees took her seat at 6:20 p.m. Chad Graham and Christopher Yerkes were absent. Tom Jentz, Jarod Nygren and PJ Sorensen represented the Kalispell Planning Department. APPROVAL OF MINUTES Kauffman moved and Young seconded a motion to approve the minutes of the May 10, 2016 meeting of the Kalispell City Planning Board and Zoning Commission. VOTE BY ACCLAMATION The motion passed unanimously on a vote by acclamation. PUBLIC COMMENT None. CAHOON CONDITIONAL A request from Angela Cahoon for a conditional use permit to USE PERMIT construct four (4) townhomes within the R-4 (Residential) Zoning District which allows single-family, duplex and townhouse development limited to two (2) attached units as a permitted use. Three (3) or more attached townhouses require a conditional use permit to analyze the compatibility with the surrounding neighborhood. Currently, the property is developed with a single- family residence and located at 1221 6t' Street West. STAFF REPORT Jarod Nygren, representing the Kalispell Planning Department reviewed the staff report for the board. Nygren said this request is for a conditional use permit for four attached townhomes. The property is located at 1221 6t` Street West, which is just east of Meridian Road. The surrounding land uses consist of single-family, townhome development, and multi- family. The subject property is currently developed with a single- family residence with a detached garage and is approximately one- half acre in size. The property will be divided into four sublots, for the proposed townhomes. Nygren added individual sewer and water lines will be required for each unit and he described the current location of these services. Sidewalks will also be required on the south side of the property along 6"' Street West. The units will be approximately 1650 square feet each, two -stories with a single car garage. Nygren reviewed the surrounding zoning and noted the growth policy is Urban Residential which anticipates townhomes as a form of housing when adequate facilities are available. Nygren Kalispell City Planning Board Minutes of the meeting of June 14, 2016 Page I 1 reviewed photos of the property and noted that the residence, garage and possibly some trees will have to be removed from the property along 6`h Street West. Any trees removed will be replaced according to the requirements of the city's Parks & Recreation Department. Nygren stated two public comment letters have been received that both indicate that parking and traffic could be an issue in the area. Nygren clarified that the development includes two off-street parking spaces for each unit meeting the city's parking requirements. No access off the alley -way is currently being proposed. Staff recommends that the Kalispell Planning & Zoning Commission adopt staff report #KCU-16-03 as findings of fact and recommend to the Kalispell City Council that the conditional use permit be approved subject to the six conditions in staff report. BOARD DISCUSSION Young asked about the alley access and Nygren clarified there is no vehicle access onto the alley currently proposed. However there wouldn't be anything that would prohibit that access in the future. Kauffman asked if a garage could potentially be constructed off the alley and Nygren said yes. Lorch asked if there is R-2 zoning to the east and Nygren indicated the closest zone is RA-1, which is quite a distance from this property. He added the zoning of this property and surrounding zoning is R-4. Kauffman asked if this is the first step before a preliminary plat would come to the table and Nygren stated a plat would not be required because townhouse subdivisions are exempt. The conditional use permit is required because they are 3 or more attached units. Nygren explained further. PUBLIC HEARING Valerie Poston, 1120 5 n Street West stated she lives across the street from this proposed development. Poston said her concern is the number of townhouses because the area is already extremely busy with traffic from the high school and Peterson & Elrod schools. She is nurse at the hospital and not only is she concerned with safety but also the additional traffic four townhouses would generate. There are busses that also use 6`' Street and there are no sidewalks from Meridian to the high school. She asked why some of the parking can't be put in the back of these residences. Jim Cossitt, 1231 6`h Street West stated he owns 1229 & 1231 6rh Street West which means that he owns '/ of the subdivision that is known as 61h Street West Townhouses. Cossitt distributed 4 sets of his written continents to the board. His initial concern with this Kalispell City Planning Board Minutes of the meeting of June 14, 2016 Page 12 application is there is a serious problem with non -disclosure and good faith. He explained the law suit he filed against the prior owners and the Lis Pendens he filed naming Angela Cahoon and the City of Kalispell as defendants. Copies of these documents are attached to these minutes. Cossitt noted that the filing of a Lis Pendes puts the public on constructive notice of matters that affect either title or right to possession of real estate. He added when he recorded the Lis Pendes he claimed an interest to the title of that real estate. When Angela Cahoon bought this property she took title via a Warranty Deed on 4/22/16, knowing that there was a law suit pending, and filed the application for the conditional use permit without disclosing this. Cossitt provided the board clerk with a copy of the Lis Pendes (copy attached to these minutes). He said it is inappropriate for the Kalispell Planning Department (Board) or the Kalispell City Council to continue consideration of this application without his affirmative consent, without dismissal of the law suit, or without a judicial determination of the merits of the law suit. He added the city had constructive notice and failed to search the land records. Cossitt reviewed his written comments on the staff report for the board. (Copy attached to these minutes). He added if the board recommends approval of the conditional use permit he urges the board to adopt a condition that requires that the side yards or the setbacks be more in the neighborhood of 10 — 12 feet, not the 5 feet required. Angela Cahoon, 127 Wishart Road, Columbia Falls stated she recently finished a subdivision in Columbia Falls with these same units and she is very proud of them. She thought this property at 1221 6 h Street West in Kalispell was a great investment and she innocently purchased the property. At closing the title company did make her aware that there was a Lis Pendens against this property, however she has never spoken to Mr. Cossitt, and the title company assured her that the reason for the Lis Pendens was due to the fact that there was a tree on the property line that has been an issue. She agreed to purchase the property and has since contacted a dangerous tree removal service to remove the tree and she is hopeful that this would settle the matter. Cahoon apologized as one of the workers did some work before 7:00 a.m. and she added it will not happen again. Cahoon introduced the project manager, Mark Cahoon. Mark Cahoon, 127B Wishart Road, Columbia Falls stated they completed a subdivision in Columbia Falls with this same type of townhouses and if any one has any concern about his conduct or honesty please contact the City of Columbia Falls. They have Kalispell City Planning Board Minutes of the meeting of June 14, 2016 Page 13 been 100% open and have not tried to hide anything. Cahoon said they have already mowed the grass a few times and just got cleared to finish the asbestos removal so now they can go ahead and demolish the garage and the house. He has tried to contact Mr. Cossitt as they want to get along with the neighbors. As far as the trees go they were told if the tree had to be removed they would have to replace it, and they have agreed to that. Cahoon noted that Angela Cahoon did buy the property. Cahoon noted that the person who started the work before 7 a.m. was from Habitat for Humanity as the Cahoons' had offered to let them recycle some of the materials from the site. He added each townhouse will be a different color, about 1650 square feet w/3 bedrooms and 2-1/2 baths. He described the parking at the Columbia Falls project where they added an additional parking spot in front, providing 3 off-street spots in exchange for vegetation between the units, and he noted it did alleviate some of the parking on the street. They are open for any suggestions to make this project work well. Cindy Buckalew stated that she owns 1215 & 1217 - 6`h Street West and she doesn't have a problem with them building there but she does have a problem with that many units. If the garages are going to be in the front it doesn't really leave any room for guest parking and that will overflow into the street. Sixth street is a through street and is a race track from Meridian Road to 5th Avenue. The street and alley are in poor condition and she has called the city without much response. Cossitt said not -with -standing the concerns he has expressed he is pleased someone has stepped up to the plate and committed capital to develop this property on 6th Street West. It will enhance his property values. However he feels it is appropriate that they resolve their squabble with him first. He also shares the concerns about the density and the traffic that was mentioned. MOTION Lorch moved and Kauffman seconded a motion to adopt Staff Report KCU-16-03 as findings of fact and recommend to the Kalispell City Council that the conditional use permit be approved subject to the six conditions in staff report. BOARD DISCUSSION Lorch said there is an elephant in the room and he doesn't feel that the board has any business discussing the lawsuit. Lorch suggested the board review the application for the conditional use permit on its merits. The city's attorney will have a chance to review the issues and will advise the planning staff on whether the application should be moved forward to the city council. Young asked if the board should ask the staff for additional Kalispell City Planning Board Minutes of the meeting of June 14, 2016 Page 14 information that is not a part of the staff report and Pesola said his initial thought was to table the application to allow the staff to review the options and then come back for an initial vote. Kauffman agreed. Jentz suggested that a Lis Pendens is a pending action. There is no injunction and nothing stopping the board from taking action. Jentz said he is comfortable with the board looking at the merits of the project and moving it forward, with the direction that the city attorney review the action prior to sending the conditional use permit application to city council. Lorch suggested he would like to hear from the applicant and what the issues would be to delay their project for a month's time. He added the application should be considered based on the regulations that the board is required to consider for review. Young also noted he would like to proceed with the review of the conditional use permit application. Lorch noted that there are duplexes built on standard size city lots all the time and Nygren said these units require 6,000 square foot minimum lot size and this lot is 19,700 square feet. They actually could be requesting six units on this property and they are only proposing four. Nygren said density is not an issue in this case. Lorch agreed this proposal looks less congested in terms of the build -out vs. the square footage of the lot. Lorch continued one of the main concerns relates to parking and because of the design of the driveways it eliminates any on -street for the entire frontage. There was lengthy discussion regarding density and increasing on - and off-street parking spaces for each unit to 3. It was noted that requiring 3 off-street parking spaces would exceed the requirement and increasing the amount of spaces would only be a suggestion not be added to the conditions. Jentz noted it could be conditioned if there is a specific issue that would support findings of fact. Further discussion was held. MOTION —INCREASING ON- Lorch moved and Kauffman seconded a motion to amend the main AND OFF-STREET PARKING motion to add a condition that would require a total of 12 on- and off-street parking spaces adjacent to or on the property to eliminate the public concerns regarding safety, traffic and visibility, and congestion. BOARD DISCUSSION Young said he has a hard time supporting this motion because it is putting a condition on this developer that would not be placed on any other developer, in any other part of the city. Kalispell City Planning Board Minutes of the meeting of June 14, 2016 Page15 Pesola said he appreciates the concern for safety on that street however, he doesn't know that the concern provides sufficient findings of fact to create a larger burden on the applicant. He would tend not to support the amendment. Skees noted she is going to err on that side as well because it would add a condition that is not already required, or potentially would not be required in the future. Skees added that she would hope that through this discussion, and if the interested parties want to work with their neighbors, parking is something that they would want to resolve for the neighborhood. ROLL CALL The motion to increase on- and off-street parking failed on a roll call vote of 1 in favor and 4 opposed. BOARD DISCUSSION The board directed staff to request a review of the issues by the city attorney. ROLL CALL The original motion passed unanimously, on a roll call vote. COURTHOUSE EAST A request from Minna Winder to amend the requirements of the PLANNED UNIT Courthouse East Planned Unit Development. The Courthouse East DEVELOPMENT PUD permitted a maximum of 28 units in order to comply with the AMENDMENT — MINNA JOY limits of the underlying R-5 Zoning. The applicant is requesting WINDER that the maximum number of units be increased from 28 to 29 units. The request would allow the applicant to convert a 3 bedroom residential unit into a 2 bedroom residential unit and an efficiency studio unit. The subject property is located at 723 56 Avenue East. STAFF REPORT Jarod Nygren, representing the Kalispell Planning Board reviewed staff report KZC-16-02 for the board. Nygren said this is a request to amend the Courthouse East Planned Unit Development (PUD). Nygren noted this request is a zone change. The conditions associated with this PUD that were approved in 2005 are the zoning. He reviewed the recent amendments to the PUD ordinance that calculates how density is determined for the board. The density requirement being measured as gross would allow up to 30 units so the applicant is requesting and additional unit for a total of 29 units. The increase would be the conversion of an existing 3-bedroom into a 2-bedroom unit and then creating an efficiency unit. No additional square footage is being included. Nygren noted that the Courthouse East Homeowners Association has approved the additional unit. Staff recommends that the Kalispell Planning Board adopt staff report KZC-16-02 as findings of fact and recommend to the Kalispell City Council that condition # 7 of the Courthouse East Kalispell City Planning Board Minutes of the meeting of June 14, 2016 Page16 PUD be amended to allow 29 units. BOARD DISCUSSION Loreh asked if the city could expect that they will come in for the 30th unit at some point, and is there any reason why 30 wouldn't be granted? Nygren said a request would have to be submitted and staff didn't want to make the decision to increase the units allowed to 30, but that could happen in the future by going through the same process. PUBLIC HEARING No one was in attendance and the public hearing was closed. MOTION Lorch moved and Kauffman seconded a motion to adopt staff report KZC-16-02 as findings of fact and recommend to the Kalispell City Council that condition ##7 of the Courthouse East PUD be amended to allow 29 units. ROLL CALL The motion passed unanimously on a roll call vote. OLD BUSINESS Nygren noted staff continues to work on the amendments to the Growth Policy with city council and after getting through 2/3rds of the document there have been several changes. Nygren added it may be coming back to the planning board for review. Jentz mentioned that the city council is moving forward with action on the South Kalispell Urban Renewal Plan update. It is scheduled for a vote on the July 51h city council meeting. Nygren reviewed the agenda for the July meeting and indicated there will two annexation requests, one on West Reserve Drive just east of the new Town Pump; and the we have also have an annexation/deannexation of a piece of property in the Core Area where there is a sliver of industrial land. In addition there will be a conditional use permit from the Tree Frog Tavern on Highway 2 West for an accessory casino. NEW BUSINESS: None. ADJOURNMENT The meeting adjourned at approximately 8:00 p.m. NEXT MEETING The next regular planning board meeting is scheduled for July 12, 2016 beginning at 6:00 p.m and located in the Kalispell City Council Chambers, 201 1" Avenue East, Kalispell. Chad Graham Michelle Anderson President Recording Secretary APPROVED as submitted/corrected: -7 / `a /16 Kalispell City Planning Board Minutes of the meeting of June 14, 2016 Page 17 CERTIFIED CERTIFIED IlI111H1:1111111111III1111fllll111111111.Illll1111III I1111111111!lllllll11 R peq.00o of 312 Fees. 5s.00 Oebbi* Pierson. Flatha+d Caunty MT by NC 81-1/)015 7 04 PM James H. Cossitt (Mont. 4773) PO Box 1$89 Kalispell, MT 59903-18$9 Tel: 4o6-752-5616 Email: jhC2mSSitt1Aw,90 ATTORNEY FOR PLAINTIFF r (Wrrk j I hFxab� ca+:r ;�,q t1 2 Instrurnr_.; to which iris certificatea true, CCrrecl and r compare; c•5cy �; fne original cn fife in Of the Clerk ^i i a Jistnct Court of Fl � Cr' �++iy this day of ,ead E�LU �20 gy f— rk of Di Court peP Clerk .1`` E��1II f,1Q� MONTANA ELEVENTH DISTRICT COURT.:,-` q FLATHEAD COUNTY ',• r James H• Cossitt, Plaintiff(s), vs. James Hammond;' Veronica Hammond, Defendant(s) Cause # 15- q-3 - 3 ROBERT B ALLISON LIS PENDENS COMES NOW Plaintiff, pursuant to § 70-19-IO2, MCA, and hereby gives notice to all whom it may concern: 1. This action affects the title'or right of ossession of real property. J 2. The names of the parties to this action are set forth in the caption. 3. The s reQLadduss of the affected real estate is 12216t� Street West, Kalispell, MT 3990 i. 4. The legal description of the affected real estate is: Cossitt v, Hammond, et al. Case DV-15 U Lis Pendens Page - of 3 4sao is Page; Gf3I2015 3.04 PH LEGAL DESCRIPTION A Ifact of land situated in Government Lot 2 of Section 10. Township 2B North, Range 31 WOst, P.M.,Ir1., Flathead County, Montana, described as follows: Beginning at the SOVlhwesl corner of Lot $Bkack 12, Westem Addition to Kalispell, Montana; thence in a Westerly direction on a line pamltel with the North "rldory of Seth Slreel, Kalispell, Montana, a distance of 18 feet to a point; thence Southerly on a tine parallel wah the Western boundary of the alley in lot 12, Western Addition to Kalispell, Montana, a distance of 13 feet to a point; thence in a Westerly direction an aline parallel to the North boundary of Sixth Street, Kalispell, Montana, a distance of 378 feet to a point; which point is the beginning of the description of the tract of land to be described; thence Northerly at a right angle parallel to the West boundary of Tenth Avenue West, Kalispell, titantana, a d'atance Of 346 feet to a paint; thence Westerly at a right angle on a line parallel to the South boundary of Fifth Street, Kalispell, Montana, a distance of t2C++feel to a point; (hence Southerly at a right angle on a line Parallel to the West boundary of Tenth Avenue West, Kafispell, Montana, a distance of 346 feet to o paint; thence Easterly at a right angle on a one parallel to the North boundary of Sixth Street, Kalispell, Montana, a distance of 120 feel to the Place of Beginning. EXCEPTING THEREFROM that certain tract deeded to Guslav A. Anderson S Emma S. Anderson. recorded in Book 385 at page 140, records of FlotheadCounty, Montana, described as follows: Commencing at the Southwest comer of Lot 6, Block 12 Western Addition to Kalispett, occarding [o the plat thereat on file in the office of the County Clerk and Recorder of Flathead County, btonlana; thence in a Westerly direction on a line parallel with the North boundary of Bah Street West Of Kafispell, a dislame of 16 feet to a point; thence Southerly on a line parallel with the West boundary of the alley in said Block Q Of Western Addition a distance of 13 feet to a point; thence in a Westerty direction on a fine parallel to the North boundary of bah Street West of Kalispell, a distance of 378 feet to a point; lhence Northerly at a right angle, para4el to the Vilest boundary of 101h Avenue Well of Kalispell, a distance or 173 teat to a point which is u,e place of teginning; thence "m said place of beginning Northerly and parallel to the West boundary of 10th Avenua West of Kalispell, a distance of 173 feet to a point; thence Westerly at a right angle a distance of 120 fact to a point; thence Southerly at a right angle a distance of 173 feet to a point; thence Easterly at a right angle a distance of 126 feet to the place Of beginning. ALSO EXCEPTING THEREFROM that portion conveyed to the Clry or Kalispell by Grant Deed and Dedication recorded May 15, 1955 in Book 387, page 500. records of Fialhaad County, Mcntana. Pursuant to § `70-L9-102(2), the F11jR of this notice is c=.LZ lnQ�ce of the pendency of this action. Dated: August 3, 2015 , James H. Cossitt, P.C. Attorney for Plaintiff Page 2 of 3 C.OssI.t v, Har motld, et al. Case s DV-15- L—) Lis Pendens Public comments by James H. Cossitt, owner of 1231 & 1229 6th Street West, Kalispell MT 59901 (260-6969) (email: jim.cossitt@gmaii.com) submitted at public hearing on 6/14/16 with respect to: REQUEST FOR A CONDITIONAL USE PERMIT KALISPELL PLANNING DEPARTMENT STAFF REPORT #KCU-16-03 May 19, 2016 This is a report to the Kalispell City Planning Board and Kalispell City Council regarding a request for a conditional use permit for the construction of four townhouse units at 1221 61h Street West. A public hearing on this matter has been scheduled before the Planning Board for June 14, 2016, beginning at 6:00 PM, in the Kalispell City Council Chambers. The Planning Board will forward a recommendation to the Kalispell City Council for final action. A. BACKGROUND INFORMATION: Owner/Applicant: Angela Cahoon 1272 Wildcat Drive Columbia Falls, MT 59912 (406) 212-0726 A. Applicant is straw man, acting on behalf of an undisclosed grd party, Cahoon Enterprises, LLC and / or Mark Cahoon. Lacks good faith and candor. )licant has no experience ? Not the jal developer ? Bare legal title only other nartv_ Location: The subject property is located at 1221 6th Street West. The property can be legally described as Tract 5DT in Lot 2 of Section 18, Township 28 North, Range 21 West, P.M.,M., Flathead County, Montana. Size: The subject property is approximately 19,700 square feet or .45 acres in size. Summary of Request: A request for a conditional use permit to construct four (4) townhomes within the R-4 (Residential) Zoning District per Section 27.07.030 of the Kalispell Zoning Ordinance. The R-4 Zoning District allows single-family, duplex and townhouse development limited to two (2) attached units as a permitted use. Three (3) or more attached townhouses require a conditional use permit to analyze the compatibility with the surrounding neighborhood. Currently, the property is developed with a single-family residence and detached garage. Developing the property would include the demolition of the existing residence and garage. The property owner will need to connect to city sewer and water, which are in the vicinity of the property. Individual service line extensions are required in order to serve the townhomes. p y Site plan is illegible even when blown up to 200% or more. Fails to meet minimum due process standard of imparting meaningful notice to interested parties of intended governmental action. j ~WAY ? a € i MA - i i - i i i P Y-----__- ' i+irFalJr4r. 3 } j i d � i . Y Figure 1: Site Plan Existing Land Use and Zoning: The property is developed with a single-family residence and detached garage. Figure 2: Existing Residence 2 The property is located within the R-4 (Residential) Zoning District. The Kalispell Zoning Ordinance describes the intent of this district: "This district is comprised of primarily single-family and duplex dwellings. Development within the district will require all public utilities, and all community facilities. This zoning district would typically be found in areas designated as urban residential on the Kalispell Growth Policy Future Land Use Map." Adjacent Zoning: The existing zoning and land uses of the land surrounding the subject property are as follows: West: R-4 North: R-4 East: R-4 South: R-4 Adjacent Land Uses: o1�rt : single-family omen (including ) Y West: single-family homes (inc g townhomes and multi -family East: single-family homes (including townhomes) South: single-family homes Relation to the Growth Policy: The subject property is within the Urban Residential land use category, which is the basis for the R-4 Zoning. The Growth Policy 2020 states that townhomes are an anticipated form of housing within the Urban Residential land use category where adequate services and facilities are available. City services including, sewer, water and streets are in the vicinity and available to the subject property. Utilities/Services: Sewer service: City of Kalispell Water service: City of Kalispell Solid Waste: City of Kalispell Electric: Flathead Electric Cooperative Phone: CenturyLink Police: City of Kalispell Fire: City of Kalispell Schools: School District #5, Kalispell B. EVALUATION OF THE REQUEST This application has been reviewed in accordance with the conditional use review criteria in the Kalispell Zoning Ordinance. A conditional use permit may be granted only if the 3 27.33.090: Burden of Applicant. The burden of proof for satisfying the aforementioned criteria considered for approval shall rest with the applicant and not the City Council. The granting of the Conditional Use Pen -nit is a matter of grace, resting in the discretion of the City Council ...... proposal, as submitted, conforms to all of the following general conditional use permit criteria, as well as to all other applicable criteria that may be requested: 1. Site Suitability: B. i. b: What are the Lures may the cks, what : trees ? +Fl B. 2.c: Does it? Given the; 1. congestion at the W end of 6th due to cluster and excessive amount of high density units west of 1221; 2. the high traffic to FHS in AM & PM from September to May; 3. bend in 6th St W and on street parking congestion; 4. trash dumpsters on 6th Street W remove usable space from street; intended use of Q & 1235 by ithead Industries ? a. Adequate Useable Space: The minimum lot area required in the R-4 Zone is 6,000 square feet. The R-4 Zoning allows for 2 attached townhouses as a permitted use. Accordingly, four units as proposed would require a minimum of 12,000 square feet (2 units per 6,000 square feet). The subject property is approximately 19,700 square feet meeting the minimum lot size required for the number of units being proposed. The property also has flat topography leaving the entire site buildable. b. Height, bulk and location of the building: Building height will not exceed the R-4 height restriction of 35' tall from bottom of finished floor to roof ridgeline. The structures will also meet the minimum required setbacks and lot coverage requirements for development within the R-4 Zone. The R-4 Zone requirements give due consideration to the height, bulk and location of the proposed townhomes. C. Adequate Access: The townhomes will be gaining their access via 6th Street West. 61h Street West is an improved City street providing adequate access to the townhomes. There is also an improved City alleyway located north of the property that can be used for access purposes. d. Environmental Constraints: There are no known environmental constraints, such as steep slopes, streams, floodplains, or wetlands, on the property which could affect the proposed use. Appropriate Design: a. Parking Scheme/Loading Areas: Each townhome unit will have two off- street parking spaces as required by Chapter 27.24 of the Kalispell Zoning Ordinance. b. Lighting Chapter 27.26 of the Kalispell Zoning Ordinance sets standards for all outdoor lighting for residential structures. C. Traffic Circulation: The townhouses will gain their access from 61h Street West, an improved city street. 6th Street West connects to a network of streets in the vicinity, providing adequate traffic circulation. d. Open Space: The proposed townhouses will meet the setbacks and lot coverage requirements of the R-4 Zone, which provides for open spaces around the units. No additional open space is required for the proposed proj ect. B. 1.d: Agree, not required per 27.34.060: Dwellings, Multi -family. However, with cramming 4 units on this parcel combined with the other high density uses in this area, make it conditional on more space or the other criteria of 27.34.060(2). B. 2. e: "may be affected" ? Total failure by applicant to sustain the burden of proof.27.33.090. Pending lawsuit, not disclosed by applicant, alleges trees are a trespass and nuisance. No consideration of CUP until lawsuit disclosed by applicant and resolved. Failure to disclose lawsuit & lis pendens = lack of good faith by applicant. e. Fencing Screening Landsca in : The landscaping will be ass/sod. There areEisting mature trees on the property that may be affected by the new construction. FencMg for THe units ave o comp y with Section 27.20.040 of the Kalispell Zoning Ordinance. f. SiMage: There will be no signage associated with the townhomes. 3. Availability of Public Services/Facilities: a. Police: Police protection will be provided by the Kalispell Police Department. No unusual impacts or needs are anticipated from the proposed single- family use. b. Fire Protection: Fire protection will be provided by the Kalispell Fire Department. There is adequate access to the property from the public road system and the townhouses will be constructed to meet current building and fire code standards for building and access. C. Water: City of Kalispell water infrastructure is within 6th Street West south of the subject property. The developer will be required to pay the cost for additional service line connections for the each of the four units. d. Sewer: City of Kalispell sewer infrastructure is located within the alleyway north of the subject property. The developer will be required to pay the cost for additional service line connections for the each of the four units. C. Storm Water Drainage: Storm water runoff from the site shall be managed and constructed per the City of Kalispell Construction and Design Standards. Prior to receiving a building permit the developer will need to submit a construction storm water management plan to the Public Works Department. This plan will need to show how storm water will be treated and where it will be directed during construction activities. f. Solid Waste: Solid waste pick-up will be provided by the City of Kalispell. g. Streets: The proposed townhomes front 6th Street West, which is an improved public street. 6th Street West connects to a network of city streets that provide adequate circulation to and from the property. h. Sidewalks: No sidewalks exist along 6th Street West in front of the property. Sidewalks will be required to be constructed per the City of Kalispell Construction and Design Standards along 6th Street West the length of the property. Schools: This site is within the boundaries of School District #5. A very minor impact to the district may be anticipated from the proposed townhouses depending on the demographics of the residents, On average 5 B. 4. a: Given the intensive development to the west and the FI intended uses of 1233 & 1235: See above, superficial conclusion of adequacy of "width and quality" overlooks: i) high density units to west that lack adequate parking mean much more congestion to the west right at the curve; 2) street size is impaired due to on street presence of garbage dumpsters; 3) curve in road to west obstructs Ndsion; 4) FHS race track from September to May, AM and PM and a much higher % of newbie drivers 4. B. 4(a): See comments at 2c above. B. 4.b & e. On both 6I7116 (hammer & demo) and 619116 (chainsaw) construction started at 0625. KPD advises ordinance violation if not limited to 0700-2200. j. Parks and Recreation: There should be no significant increase in demand on the parks and recreation programs and facilities as a result of this use. No additional parkland is required form the proposed townhomes. Neighborhood impacts: a. Traffic: Four townhomes will not have a significant impact on the traffic generated in the area. It is anticipated that each of the four residential units will produce approximately 9.57 trips ends/day (Per ITE trip generation model). The four units would generate approximately 29 net (already one residence of property) trips per day. The width and quality of 61h Street West is more than adequate to handle the additional traffic load. b. Noise and Vibration: Other than during construction, the townhomes will not create any objectionable noise and vibration beyond what would normally be associated with a single-family residence. C. Dust, Glare, and Heat: Other than during construction, the townhomes will not create any objectionable dust, glare, and heat beyond what would normally be associated with a single-family residence. d. Smoke, Fumes, Gas, or Odors: Other than during construction, the townhomes will not create any objectionable smoke, fumes, gas, or odors beyond what would normally be associated with a single-family residence. e. Hours of Operation: Hours of operation does not apply to this project since it is for townhomes. If a home based occupation were to occur the residents would have to comply with the home based occupation section of the zonin€ B. 5. Historical use patterns show more space between structures. West garage wall at 1221 is 15 feet from lot line. East side of 1229 is 9.5 feet from lot line. Add condition for more 10-15 feet side yard setback to maintain historical use patterns. S. Consideration of historical use patterns and recent changes: The area is a mix of single-family residences including townhouses and multi -family developments on small lots. The subject property is developed as more of a ranch home on a large lot compared to others in the vicinity. Development of the property with the four townhomes would be more in line with the surrounding developments. More intensive townhouse development exists directly to the west and east of the property. The R-4 Zoning of the project site and the Urban Residential land use designation anticipates this kind of townhouse development. 6. Effects on property values: Currently, the existing residence is in disrepair and will be demolished. Replacing the existing structure with four (4) new units will create more value to the property than the existing residence. Accordingly, it is anticipated that property values will increase with the development of the r L Applicant misrepresentation, failure to disclose pending lawsuit. Staff failed to check land records for unpaid taxes and legal claims, staff report has poor analysis and wrongly concludes that applicant has met the B/P on all the the applicable criteria. Do not adopt the report at this time and require more intensive fact finding, better analysis and see if the staff even comes to the same conclusion. City on constructive notice of fawsuit and fails to even mention it. Deny CUP uintil lawsuit concluded. C. RECOMMENDATION The staff recommends that the Planning Board adopt staff report #KCU-16-03 as findings of fact and recommend to the Kalispell City Council that the conditional use permit be approved subject to the following conditions: CONDITIONS OF APPROVAL 1. Impossible due to non disclosure of lawsuit. Cannot get financing without resolution of same. Inability to complete without financing. 6. Related to lawsuit. New condition: side yard setbacks be set at 10-15 feet per existing spacing to maintain historical use pattern. 1. That commencement of the approved activity must begin within 18 months from the date of authorization or that a continuous good faith effort is made to bring the project to completion. 2. Final designs for storm water management, water service, water meter placement, and sanitary sewer service for each townhouse that comply with Kalispell's Standards for Design and Construction shall be submitted for review and approval by the City of Kalispell Public Works Department prior to construction. 3. Each townhouse unit is required to have individual sewer and water service line connections. The sewer and water service lines shall be reviewed and approved by the Kalispell Public Works Department prior to construction. City permits required for driveway and service connections within the public right-of-way shall be obtained prior to construction. 4. Sidewalks, curb and gutter shall be constructed per the City of Kalispell Construction and Design Standards along 6th Street West the length of the property. 5. A letter from the Kalispell Public Works Department shall be submitted to the Kalispell Building Department stating that all new infrastructure has been accepted by the City of Kalispell. 6. Prior to any work within the public right-of-way, the property/owner will work with the Parks Superintendent to establish tree protection zones and file a permit for any tree removals with the Parks and Recreation Department. (Summary & overall conclusions: multiple problems regarding good faith, fair dealing, adequate disclosure in the application 1. Angela is a straw person; undisclosed real owner is Mark ?; 2. No disclosure of the lawsuit by the applicant; 3. Applicant has no ability to get financing with lawsuit and lis pendens, feasability and condtion of approval #1 cannot be met; 4. City staff failed to note lawsuit impact even though City has constructive notice via recorded lis pendens; 5. Item 2(e) and approval condition #6 are subjects of the lawsuit; 6. Sale via false notary calls into Q legal effect of the deed recorded on 4/22/16; 7. Lis pendens recorded 813115 has priorty over current owner's title, she took subject to the lis pendens since JHC has a senior interest via the Lis Pendens, City has constructive notice of the senior interest and JHC must consent S. At time of purchase, false promises and no follow through on responsibility for clean up of property, conspiracy with Hammonds to avoid responsibility to address lawsuit and clean up property; 9. clean up now, end trespass, conclude lawsuit and then come back for CUP. James H. COssitt (Mont. 4773) PO Box 1889 Kalispell, MT 59903-1889 Tel: 4o6-752-56t6 Email: %c0cossittlaw.com ATTORNEY FOR PLAINTIFF CI-F3?,i T RfL.-C C rlT s" ! L r MONTANA ELEVENTH DISTRICT FLATHEAD COUNTY 01Y James H. Cossitt, I Cause # i5-693(B) Plaintiff(s), I Robert B. ,Allison vs. James Hammond; Angela Cahoon; City of Kalispell, Defendant(s) T U T''' Est AMENDED & SUBSTITUTED COMPLAINT COMES NOW Plaintiff(s), James H. Cossitt ("Cossitt"), and pursuant to MRCP t5(a)(1)(B), files this 1st Amedned and Substituted Complaint, and state(s): JURISDICTION, VENUE & PARTIES 1. The Montana District Court has original jurisdiction of this matter pursuant to § 3-5-302 MCA, 2. Venue is proper in Flathead County pursuant to § 25-2-121, MCA. 3, Plaintiff James H. Cossitt ("Cossitt" or "Plaintiff') is a natural person who: Cossitt v. Hammond, et al. Case * DV-16-693(B) Page i of 6 is, Amended & Substituted Complaint James H. Cossitt (Mont. 4773) PO Box 1889 Filed 6/9/t6 Kalispell, MT 59903-1889 Tel: 4o6-752-5616 Email: jhe(q)cossittlaw.com ATTORNEY FOR PLAINTIFF MONTANA ELEVENTH DISTRICT COURT FLATHEAD COUNTY James H. Cossitt, Plaintiff(s), Vs. Angela Cahoon; =Cit�of Kalispell, Defendant(s) Cause # 15-693(B) Robert B. Allison DV is' AMENDED & SUBSTITUTED COMPLAINT COMES NOW Plaintiff(s), James H. Cossitt ("Cossitt"), and pursuant to MRCP 15(a)(i)(B), files this 15{ Amedned and Substituted Complaint, and state(s): JURISDICTION VENUE & PARTIES 1. The Montana District Court has original jurisdiction of this matter pursuant to § 3-5-302 MCA. 2. Venue is proper in Flathead County pursuant to § 25-2-121, MCA. 3. Plaintiff James H. Cossitt ("Cossitt" or "Plaintiff') is a natural person who: Cossitt v. Hammond, et al. Case # DV-�5-693(B) Page x of 6 ist Amended & Substituted Complaint a. resides at 1231 Eft' Street West, Kalispell; and b. owns real estate located at both 1229 and 12316tb Street West. 4. Defendant James Hammond (hereafter "Hammond") is a natural persons who, with his wife Veronica, was the former owner of the real estate located at 1221 6th Street West which is described as: LEGAL DESCRIPTION A tract of land situated in Government Lot 2 of Section 18, Township 28 North, Range 21 West, P_M-,M., Flathead County, Montana, described as follows: Beginning at the Southwest comer of Lot 6, Block 12, Western Addition to Kalispell, Montana; thence in a Westerly direction on a line parallel with the North boundary of Sixth Street, Kalispell, Montana, a distance of 16 feet to a point; thence Southerly on a line parallel with the Western boundary of the alley in Lot 12, Western Addition to Kalispell, Montana, a distance of 13 feet to a point; thence in a Westerly direction on a line parallel to the North boundary of Sixth Street, Kalispell, Montana; a distance of 378 feet to a point; which point is the beginning of the description of the tract of land to be described; thence Northerly at a right angle parallel to the West boundary of Tenth Avenue West, Kalispell, klontana, a distance of 346 feet to a point; thence Westerly al a right angle on a fine parallel to the South boundary of Fifth Street, Kalispell, Montana, a distance of 126 feet to a point; thence Southerly at a right angle on a line parallel to the West boundary of Tenth Avenue West, Kalispell, Montana, a distance of 346 feet to a point; thence Easterly at a right angle on a line parallel to the North boundary of Sixth Street, Kalispell, Montana, a distance of 126 feet to the Place of Beginning_ EXCEPTING THEREFROM that certain tract deeded to Gustav A. Anderson & Emma S_ Anderson, recorded in Book 385 at page 140, records of Flathead County, Montana, described as follows: Commencing at the Southwest corner of Lot 6, Block 12 Western Addition to Kalispell, according to the plat thereof on ftle in the office of the County Clerk and Recorder of Flathead County, Montana; thence in a Westerly direction on a line parallel with the North boundary of bah Street West of Kalispell, a distance of 16 feet to a point, thence Southerly on a line parallel with the West boundary of the alley in said Block 12 of Western Addition a distance of 13 feet to a poini. thence in a Westerly direction on a line parallel to the North boundary of 6ah Street West of Kalispell, a distance of 378 feet to a point; thence Northerly at a right angle, parallel to the West boundary of 10th Avenue West of Kalispell, a distance of 173 feet to a point which is the place of beginning; thence from said place of beginning Northerly and parallel to the West boundary of 10th Avenue West of Kalispell, a distance of 173 feet to a point; thence Westerly at a right angle a distance of 126 feet to a point; thence Southerly at a right angle a distance of 173 feet to a point; thence Easterly at a right angle a distance of 126 feet to the place of beginning. ALSO EXCEPTING THEREFROM that portion conveyed to the City of Kalispell by Grant Deed and Dedication recorded May 15, 1555 in Book 387, page 500, records of Flathead County, Montana. 6. Defendant Angela Cahoon (hereafter "Cahoon") is a natural person and is the present owner of 1221 6th Street West. Cossitt v. Hammond, et al. Case # DV-15-693(B) Page 2 of 6 ist Amended & Substituted Complaint 6. The City of Kalispell, Montana, is a legal subdivision of the State of Montana and, as it relates to this matter, acts through it's City Council and / or Planning Department and / or City Planning Board and Zoning Commission. ALLEGATIONS COMMON TO ALL COUNTS 7. On 8/3/15, Cossitt caused a Lis Pendens to be recorded with the Clerk and Recorder as document # 2015 0000 17412. 8. James and Veronica Hammond conveyed their interest to Cahoon via a Warranty Deed recorded on 4/22/16 as document # 2016 0000 7642. 9• On or about 5/5/16, Cahoon filed an Application for a Conditional Use Permit ("CUP") with the City of Kalispell, Planning Department. 10. The CUP application contains false statements, omissions of material facts, a false certification and fails to disclose the existence of either the Lis Pendens or this lawsuit. 11. Cossitt's interest in the property, via the Lis Pendens, is senior to any interest acquired by Cahoon via the Warranty Deed. 12. As the holder of a senior interest in the property, Cossitt must either join the CUP application or consent to it as a condition precedent to consideration of the CUP by the City of Kalispell. 13. Hammonds and Cahoon have failed to maintain and / or allowed the real estate to fall into disrepair, become a nuisance and to trespass onto Cossitt's property as follows: a. allowed trees to encroach / trespass the property boundary between 1221 and 1229 6th Street Westby Cossitt v. Hammond, et al. Case # DV-15-693(B) Page 3 of 6 I't Amended & Substituted Complaint i. encroaching and gro-Mng onto the property at 1229; and ii. encroaching and growing into the fence itself and damaging the fence; iii. encroaching and trespassing into the airspace above 1229; iv. shedding debris onto the ground at 1221. b. allowed trees to encroach into the public roadway of 6til Street West, resulting in large amounts of tree debris / waste accumulating on the roadway and walkway; and C. have failed to mow the entire yard or portions of the yard at 1221 during 2015; and d. allowed deep piles of leaves, branches, brush, dead grass and other piles of flammable yard waste to accumulate at 1221; and e. left abandoned appliances (yard grill and other items) at 1221; and f. left an abandoned and unused Aljo trailer in the backyard; g. allowed discarded auto parts, auto tires, debris, old oil filters and other garbage to accumulate at 1221; h. conducted construction operations starting @ 0625 in the morning. COUNT I / TRESPASS 14. Plaintiff(s) replead(s) ¶¶ 1-13 15. Hammond and Cahoon have allowed their trees to enter on to or above, remain on or above and damaged Cossitt's property and use of his property as set forth in 113 above. This conduct constitutes trespass. 16. As a result of the trespass, Plaintiff has been damaged and the use of his property is impaired. Cossitt v. Hammond, et al. Case # DV-15-693(B) Page 4 of 6 in Amended & Substituted Complaint WHEREFORE, Plaintiff(s) demand(s) judgment against Defendants Hammond and Cahoon as follows: a. for declaratory and injunctive relief to prevent future trespass, to prevent past or ongoing conduct and to restrain future conduct; b. for monetary damages to compensate for the losses resulting from the trespass; and c. for such other and further relief as is just and equitable. COUNT II / NUISANCE 17. Plaintiff(s) replead(s) IT 1-16. 18. Hammond and Cahoon have engaged in a wide range of intentional or reddens conduct described above that is either injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of Cossitt's life or property, and that constitutes a nuisance. 19. The conduct set forth in I x3 above constitutes a nuisance. 20. As a result of the nuisance conduct, Plaintiff has been damaged. WHEREFORE, Plaintiff(s) demand(s) judgment against defendants Hammond & Cahoon as follows: a. for declaratory and injunctive relief to prevent past or ongoing nuisance conduct and to restrain future conduct; b. for monetary damages to compensate for the losses resulting from the nuisance, including damages for emotional distress and punitive damages; and C. for such other and further relief as is just and equitable. COUNT III / INJUNCTION 2t. Plaintiff(s) replead(s) IT 1-20. Cossitt v. Hammond, et al. Case # DV-15-693(S) Page 5 of 6 11t Amended & Substituted Complaint 22. As a result of the trespass and nuisance conduct, Plaintiff has been damaged and has no adequate remedy at law or in damages. WHEREFORE, Plaintiff(s) demand(s) judgment againit all defendants s follows: a. for declaratory and injunctive relief to prevent past or ongoing trespass or nuisance conduct; and b, for such other and further relief as is just and equitable. Dated: June 9, 2016 /J/ ��.Gt2QQ. &444& James H. Cossitt (Bar #4773) James H. Cossitt, P.C. ATTORNEY FOR PLAINTIFF Cossitt v. Hammond, et al. Case # DV-15-693(B) Page 6 of 6 vt Amended & Substituted Complaint