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Cummins to Harball/Harball to CouncilCharles Harball, Kalispell City Attorney r- t Kalispell City Council 1 ©� E C E i V E D Kalispell, MT 59901 %Cf32 Date: 6/11/05 Subject: DEV Properties Court House East PUD Proposal/Zoning Change Request KALISPELL CITY CLERK Dear Kalispell City Council and Mr. Harball, I live at 1002 4th Ave. E. and would like to comment on the DEV Properties PUD proposal/zoning change request. By now you are well aware of my opposition to creating this PUD district based on the DEV proposal dated March 21, 2005. However, I am unable to understand the City Council's apparent position that this proposal can be approved. To me, it appears that the council is intentionally choosing to ignore Kalispell's zoning regulations. I am writing in hopes that you can help me understand your position. At the June 6, 2005 council meeting I asked the council for a clarification of the city attorney's opinion of whether some or all of the requirements of Kalispell's zoning ordinance 1175 could be set aside at the discretion of the City Council. Mr. Harball's response was that the council is acting as a judicial body, and it is up to the council to determine the true facts when widely differing facts are offered by opposing parties. I didn't feel his comments got to the heart of my question, so I'll try asking again. I understand that the City Council's jurisdiction over zoning comes from the enabling authority of 76-2-301, M.C.A. Under this state law, zoning regulations must be "made in accordance with a growth policy", "designed to lessen congestion in the streets", and the other items of 76-2-304; essentially the questions asked on the petition for zoning map amendment. My question is not whether the ordinance to approve DEV's PUD application meets these tests ("Will it lessen congestion in the streets?", etc.). The City Council has passed a set of zoning requirements, Kalispell zoning ordinance 1175. The City Council is considering another ordinance 1538 that would authorize DEV's proposal without repealing or changing 1175. Here is my question: Which of the following two statements best represents the city attorney's opinion? A. The City of Kalispell, including the City Council, is required to enforce all of the zoning requirements of ordinance 1175 as long as it is on the books. Ordinance 1175 provides a uniform set of requirements for everyone. This "level playing field" gives equal protection to all applicants as required by constitutional law. Ordinance 1538 must meet all the requirements of 1175. B. The City Council in empowered to make and change the zoning ordinances. The City Council is free to pass ordinance 1538, setting aside any requirements of 1175 that it thinks are in the public interest to ignore. The City Council need only support its decision based on the criteria of 76-2-304 (lessen congestion in the streets, etc.), not based on any criteria of 1175 ("The minimum land area for a Mixed Use PUD in a residential district is twenty (20) acres", etc.). Ordinance 1538 is a custom set of requirements, which replaces ordinance 1175 for this particular property. Mr. Harball, I'd appreciate a written response (A or B) along with any clarification you'd like to include. For some issues of this proposal such as "Does it meet the Kalispell growth policy?" evidence has been presented both for and against approval. For other issues, the facts are not in dispute. For example, the site is approximately 2 acres, or, quoting from staff report #KZC-05-03 / KPUD-5-03 "The R-5 zoning district does not allow multi -family dwellings". However, if it is the city's opinion that Ordinance 1175 is irrelevant, I will focus my questions on other aspects of the controversy. Sincerely, Chuck Cummings 1002 4th Ave. E. r 1 L 1= Kalispell, MT 59901�� City of Kalispell Charles A. Harball Office of City Attorney City Attorney 312 First Avenue East P.O. Box 1997 Kalispell, MT 59903-1997 MEMORANDUM TO: Mayor Pamela B. Kennedy and Kalispell City Council and Chuck Cummings FROM: Charles Harball, City Attorney Tel 406.758.7708 Fax 406.758,7771 charball@kalispell.com SUBJECT: Query Letter of 6/11/05 from Chuck Cummings Regarding Court House East PUD We received a letter of inquiry on June 11th from Chuck Cummings who is a city resident residing on the east side near Court House East. Chuck has been quite involved with the east side neighborhood as the development of the Court House East block has gone through the administrative process. I have met with Chuck on one occasion and have reviewed the materials he has provided to council. I truly appreciate the earnest and constructive attitude with which he as approached this matter and I hope that my response will help answer his questions and perhaps any questions council has based upon his letter. Mr. Cummings couches his query within the assumption that council is somehow failing to follow Ordinance 1175, particularly as codified in Kalispell City Code 27-21-010 to 030 as it pertains to planned unit developments. More particularly, he questions how the council can approve this Mixed Use PUD on a 2 acre lot when Section 27.21.030(4)(a)(5)(d)l) states that "The minimum land area for a Mixed Use PUD in a residential district is twenty (20) acres." Unfortunately, this particular section of our land use code is not as user- friendly as we would desire and can lead to some confusion for the uninitiated. This particular section that Mr. Cummings draws upon refers to a "Residential Mixed Use PUD" referred to in 27.21.030(3)(a). However, the application by DEV and that considered by staff, the Planning Board and City Council is based upon 27.21.030(3)(d) which is a "Mixed Use PUD" and "Based on site plan review, and after establishing compatibility with the adjoining land uses and determining that the adverse environmental impacts shall only be minimal and can be mitigated, the City Council may allow a Mixed Use PUD in any district which qualifies for a Residential, Commercial or Industrial PUD." This refers back to Section 27.21.030(2) which states that, "the minimum land required for a change to or designation as a PUD shall be two acres and shall be under single ownership." The Cummings Query Memo June 16, 2005 Page - 2 Court House East Block meets these requirements. Council is therefore not ignoring its own ordinances and has carefully considered this very complex land use issue. As I stated at the meeting, Council would, as any judge does, make findings of fact that were almost guaranteed to make someone unhappy. Neighbors who were hoping that this property would be developed with the least intense uses possible were certainly disappointed. However, the owner of the property did not put that option on the table for the Council to consider and the option that was presented does improve the property from its current sorry state. Respectfully submitted, C arfes A. Harball City Attorney Office of City Attomey City of Kalispell Charles Harball, Kalispell City Attorney Kalispell City Council Date: 6/20/05 Subject: DEV Properties Court House East PUD Proposal/Zoning Change Request To: Kalispell City Council and Mr. Harball, My name is Chuck Cummings. I live at 1002 4th Ave. E. and I'd like to comment on the DEV PUD application. First of all,Y-I'd like to thank City Attorney Harball for responding to my letter of June 11. This letter posed a multiple choice question, asking whether the city attorney felt that A) the city must enforce all of the requirements of zoning ordinance 1175 for all applicants, or B) the City Council is free to set aside requirements of 1175 that it feels are in the public interest to ignore. You'll notice that he didn't actually answer A or B, but I gather from the tenor of his response that the requirements of ordinance 1175 must be followed. Mr. Harball goes on to cite ordinance 1175 section 27.21.030(3)(d) which says that the City Council may allow a Mixed Use PUD in a district which qualifies for a residential, commercial, or industrial PUD. I must be uninitiated, because if this is intended to be aAsilver bullet clause that allows the City Council to set aside all of the other requirements that are spelled out in detail in the ordinance sections that follow it, this phrase surely doesn't say this to me. Members of the Council, before you vote on the second reading of this PUD, ask yourselves if you. have applied the requirements of ordinance 1175 in a consistent manner. Does everyone get to subtract over 13000 square feet from their building size before calculating off-street parking requirements? Has anyone presented evidence to dispute the density calculations in my letter of May 11 which show that when commercial use and commercial parking are subtracted from the acreage as required by ordinance 1175 section 27.21.030(4)(5), the density is over 1.9 times the allowed R5 density? Has anyone disputed my 49.4% commercial use calculation or my green space calculations which show 82% impervious surfaces, both of which are over the required limits? Are all developers allowed to build an additional building on a site while failing all of these requirements? I am not asking you to hold the developer's toes to the fire. I am merely asking you to hold the developer to the requirements of Kalispell zoning ordinance 1175. Thank you. 1; 11 Lk &I - I Chuck Cummings V 1002 4th Ave. E. Kalispell, MT 59901 755-6596