HomeMy WebLinkAboutRFD - 22-00102 & 22-00103 - Pine Brook DIV2 Blk6 Lots 16-24
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#22 00102 & 22 00103
Comprehensive Plan Map change from Rural to LDR1-MDR1
Rezone from Low-Density Residential 2 (LDR2)
Pine Brook DIV2 Blk6 Lots 16-24
1. February 17, 2022, An application was received for a Comprehensive Plan Map change from
Rural to LDR1-MDR1 and a Rezone from Rural Residential 2 (RR2) to Low-Density
Residential 2 (LDR2) from Todd Webb.
2. February 22, 2022, Legal Description was received. Hinge Pointe LLC had to be renewed
with the State of Idaho.
3. February 28, 2022, Fees were paid.
4. March 1, 2022, Hinge Point LLC was reinstated with State of Idaho.
5. March 10, 2022, Staff Reviews were completed. Staff Report was written and attached to the
permit.
6. March 11, 2022, Notice was sent to the newspaper to be published on March 22nd and March
29th, 2021.
7. March 14, 2022, Notice was mailed to all property owners within 350’.
8. March 21, 2022, Notice was posted on the property.
9. April 6, 2022, Alan Parkinson presented the application to the Planning & Zoning
Commission.
(22-00102) – Pine Brook DIV2 Blk6 Lots 16-24 – Comprehensive
Plan Map change from Rural to LDR1-MDR1. The properties
surrounding these parcels are all designated Rural. – Todd Webb
(action) (23:18)
Aaron Richards recused himself.
Applicant Presentation: Todd Webb – 1057 Trappers Ridge
- The request is to change the properties from Rural to LDR1-
MDR1, because the lots have sat for over twelve (12) years. Originally, he believes
these lots were slated to be twin home lots. Aaron Richards and Refuge Homes have
been working with Todd to get the lots set up for twin homes. Each lot would be
35 North 1st East
Rexburg, ID 83440
Phone: 208.359.3020
Fax: 208.359.3022
www.rexburg.org
Reason for Decision
City of Rexburg
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split into two lots. He feels this would be a good thing for the area. The nearby golf
course could benefit from the additional homes. it would be a good fit for the
community. In the city, there are places where twin homes have been built next to
single-family homes, which has been a beneficial relationship for both types of
housing.
Aaron Richards – 351 Talon Dr – He is speaking as a member of the public. Aaron
comes from a background of home development. He has been looking for three
years for the right place to build a twin home product. In the community, there is a
tremendous demand for this type of product. Aaron is sensitive regarding what they
are asking, because this is in an area where there is already a community; it is not a
new development.
Example 1: Harvest Heights DIV3
Harvest Heights off of Millhollow has some twin home lots that have not been built
on. Low-Density Residential 2 (LDR2) is needed for zoning in order to build twin
homes.
Example 2: Valley View Estates across from a twinhome.
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Next to the church, is a $1.4 million-dollar home faces $½ million-dollar twin homes
and they all live in harmony.
Example 3: Eaglewood Subdivision
Aaron lives in Eaglewood and this is really what inspired him to focus on
twinhomes. You have the perimeter of the community as a buffer from the adjacent
High-Density Residential 1 (HDR1) and E 7th S. The twinhomes have actually
proven to increase the value of the single-family homes. The twinhomes average
$4,000-$7,000, which has pushed up the value of the single-family homes. In building
an attractive twinhome, this will not detract from the value of the single-family
homes.
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The applicants have met with the community of Pine Brook residents. You will hear
voices of opposition and support. The Low-Density Residential 2 (LDR2) zoning
allows for a smaller lot size than the developer wants to do and what the community
wants to see. Technically, the zoning would allow the lots to be split to have thirty-
six (36) units. They have entered into a contractual Development Agreement limiting
the replatting of the nine (9) lots into eighteen (18) lots. This is not the developer’s
desire, the desire is to meet the Conditions, Covenants & Restrictions of the
subdivision. The CC&Rs require a minimum 1,700 sq. ft minimum and a 2-car
garage; the starting price is $500,000 per unit. The new homes in the community are
in the $750,000 range. The applicant’s request would create a buffer from Hwy20
and a step-up from the single-family homes, to these twinhome units, to the freeway
and what will ultimately be built on the other side of the freeway.
Commissioner Questions: Eric asked who the contractual agreement is between.
Aaron answered the contractual agreement is between the development partners, the
two homebuilders – Hinge Point and Refuge Homes and the H.O.A. Vince asked
who signed on behalf of the H.O.A. Aaron said a board member signed the
agreement. Vince asked is all the board members of the H.O.A. have to agree before
one can sign the agreement. Attorney Zollinger counseled it is relevant to the point
they have entered into an agreement, but the agreement is between the H.O.A. and
the developer; the city will not get involved. A gentleman spoke from the audience
confirming a letter was written on which all members of the H.O.A. signed. The
contract is in the H.O.A.’s hands with all of the developers’ and homebuilders’
signatures. Vince commented the city has nothing to do with CC&Rs.
Brad Wolfe joined the meeting.
Staff Report: Alan Parkinson – There is a difference between a Comprehensive
Plan Map change and a Zone change. The Comprehensive Plan Map is a map
designed in collaboration with the community laying out what we see will happen in
the future. The map shows where growth is anticipated and is used as a guiding
document in determining where to increase supporting infrastructure. The Zoning
determines the parts of the code a developer or homeowner has to follow. The
Comprehensive Plan map designations are tied to a group of possible zones. If this
application is approved, it would allow the Applicant to ask for one of the zones
allowed in that Comprehensive Plan map chart for this designation. In the following
hearing, a rezone could then be considered for Low-Density Residential 2 (LDR2).
The current Comprehensive Plan map designation of Rural does not allow a zoning
to LDR2, so they have to come in and ask for the LDR1-MDR1 designation to
prepare for the zoning in which the LDR2 zone would fall. This year, both the
Comprehensive Plan Map and the Comprehensive Plan Text will be amended. The
public has an opportunity to be a part of the rewrite this year.
Staff has reviewed the application. Sewer, water, and roads capacities have been
reviewed. If necessary, a Traffic Impact Study will be requested. The sewer and water
capacities can service the request. Multiple opportunities of ingress/egress access
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these parcels. Staff recommends the application to the Commission for
recommendation to City Council.
Commissioner Questions: Vince asked for some history of the Pine Brook
subdivision. The Staff Report reads:
“May 2, 2007, City Council received a heads up for the Pine Brook
Annexation. In 2007, an application was received to annex Pine Brook
Division 1 and the land that would be Pine Brook Division 2 into the city
(07-00209) and rezoned DIV1 to Rural Residential 1 (RR1). December
19, 2007, City Council approved the annexation and rezone of Pine
Brook Division 2 to Rural Residential 2 (RR2), changing the portion
against Hwy 20 from Low-Density Residential 1 (LDR1) to RR2. In 2008,
a Final Plat was approved for Pine Brook Division 2 (08-00116). Since
2013, several single-family homes have been built.”
The preparation for the selling of lots finished shortly before the economy collapsed
and sat idle until the last three or four years. The majority of lots in Pine Brook
DIV2 have been sold and some have been built on. Vince asked Alan for some
general statistics. Alan said four years ago, probably 40% of the lots had sold. Now,
there are probably more like 80%-90% that are purchased and are built-out or are in
some stage of building. Vince asked Attorney Rammell about the definition of “spot
zoning.” Attorney Rammell said a definition can be read, but the courts may
interpret the definition differently over what one word in the definition means.
“Spot zoning commonly refers to the singling out of one lot or other small area for
zoning classification that is different from that accorded to similar surrounding
land, usually for the benefit of the owner and to the detriment of the community.
The most widely accepted test for determining an illegal spot-zoning is sometimes
stated in combination or sometimes separately as whether the zoning for the parcel
in question is in accordance with the Comprehensive Zoning Plan, whether the
zoning of the subject parcel is compatible with the uses in the surrounding area, and
whether the zoning of the subject property serves the public welfare or merely confers
the discriminatory benefit on the owner of the property.”
In 2015, the most recent court cases, the courts talk about two types of
spot zoning: Type 1 is rezoning or property for a use prohibited by the
previous zoning classification, Type 2 Rezoning refers to a zone change
that singles out a parcel of land that is inconsistent with the permitted use
and the arrested benefit of the individual property. They go on to talk
about permissible uses of spot zoning. Attorney Rammell said the courts
have not given us clear guidance. Typically, we talk about if the request is
in accordance with the Comprehensive Plan when you are trying to figure
out if a request meets the types of spot zoning as defined thus far.
Chairperson Smith reminded the Commissioners at this point we are
talking about the Comprehensive Plan and not the zoning, yet. Attorney
Rammell said, yes and no, but you know where you are headed. Eric
asked about the difference between the Comprehensive Plan Map of Rural
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and LDR1-MDR1. Alan answered the Rural designation would allow
Transitional Agriculture (TAG), Rural Residential 1 (RR1), and Rural
Residential 2 (RR2) potential zones. LDR1-MDR1 allows zoning of Low-
Density Residential 1 (LDR1), Low-Density Residential 2 (LDR2), and
Low-Density Residential 3 (LDR3), and Medium-Density Residential 1
(MDR1). There are differences in the size of lots. Low-Density zones are
single-family homes like duplexes, twin homes, and townhomes. In
MDR1, you are start into multi-family residences. Eric asked if sidewalks,
curb, and gutter are required in all zones. Alan responded sidewalks are
required in RR2 and LDR2 for connectivity. Chairperson Smith
confirmed there are differences in permitted uses. Alan said in RR2 allows
a single-family home on ½ acre. LDR2 requires 8,000 sq.ft. and 10,000
sq.ft. for a duplex or twin home. Either zone would allow manufactured
homes that are at least twenty-four (24’) feet on a permanent foundation.
(50:19) Chairperson Smith opened the public input portion of the hearing at
7:20PM and explained the public hearing procedures.
Favor:
Brandon Winter - 580 Terra Vista Drive – He has a financial interest as a developer
in the area. Fourteen (14) lots were purchased by Hinge Point for building new
homes in the area. He purchased the remaining eight (8) lots that were available
along the highway. The sale of these lots is contingent upon the approval of the
applications by the Commission. In the development, at a meeting held this week
with the neighbors, the H.O.A. stated they were told twin homes may go into the
development. He believes it is stated on the sign at the entrance to the subdivision.
This is the intended use for these lots along Hwy 20. Most people are happy the
previous developer would be out of the equation as the subdivision concludes.
Jeffrey Zollinger - 1073 Green Side Loop – Having been a previous twin home
developer as a child and a teenager, he feels twin homes are great for community and
we are lacking in this type of housing. Jeffrey speaks in favor of the application.
Tina Leishman - 1103 Green Side Loop – Her home is the second to build in
DIV2 of Pine Brook eight (8) years ago. Ever since she bought the property, and
built her home, she has been a part of the approval process for the homes that have
come in. She and her husband serve on the H.O.A. board in different capacities. The
two have seen and experienced a lot of growth in their neighborhood. The H.O.A.
has put up with a lot from the previous developer. She and her husband have
worked hand-in-hand with the city to overcome a few items that have been
associated with the subdivision but not completed. One of the challenges has been
agreements written down as promised to Pine Brook DIV1 with Curtis Ferney. She
was told in the beginning, there would eventually be twin homes along the highway.
During the eight (8) years she has lived in her home, no one has expressed interest in
developing the lots along Highway 20 until now. Tina has noticed the developers are
bringing a different building style, adding variety to the neighborhood; it is a good
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thing. Housing prices are going up. The homes are high-end. These builders
proposing the application have a vested interest in the subdivision, because they do
have lots that have not been built on either. Also, the developers have met with the
H.O.A., this last Tuesday, the developers met with the subdivision and went over
their plans.
She understands a petition was submitted to the city with several of the
homeowners’ signatures. Tina does not know the circumstances under which the
petition was presented. She did speak with the individual who submitted the petition.
The individual understood thirty-six (36) homes would be built. They can do 4-
plexes and manufactured homes. The sewer system is not designed to support thirty-
six (36) homes. The price point of these homes starts out at $300,000. There were
concerns about the possibility of more kids drowning in the private pond. She feels
some of these comments are valid concerns, Tina does not want thirty-six (36)
homes along the highway. What was proposed to the neighborhood was nine (9)
twin homes or eighteen (18) dwellings. She feels every homeowner has the right to
voice their opinion on the rezoning, based on the facts, not on emotional
misinformation.
Tina does not feel the price point of starting of the $500,000 is correct. Homes built
in the subdivision to meet the bare minimum requirements have sold in the $460,000
range. The twin homes will sell at a higher square footage for value and will increase
property values of the nearby single-family homes. It will be nice to complete the
subdivision. Todd Webb does a nice job on the homes he has built. She agrees to the
nine (9) twin homes.
Neutral:
David Wills - 898 Pine Brook Ln – He lives within three hundred fifty (350’) feet of
the proposal. He learned the city is not required to notify him due to his distance
from the application lots. David was one of the people who walked around the
neighborhood and collected signatures. However, he wants to withdraw his name
from the petition. He wanted his comments to be heard in person as opposed to his
words in a letter. The information shared today is pretty comprehensive and
enlightening. David is not opposed to the eighteen (18) units. There are some
beneficial improvements that will come with the development, including an artificial
sound barrier from the highway for the neighborhood. David moved into a
completed home 2 ½ years ago as the second owner. It was immediately obvious to
him there is a lot of freeway noise. The twin homes as a buffer is a positive. The
negatives of changing from Rural to a more controlled development style. The
ramification of this approval is the forecast of what will happen across the street to
the west of Pine Brook. David works as a Data Analyst, looking for trends. When he
went to the builders’ meeting on Tuesday, there was some contention about whether
or not twin homes would raise or lower the value of the current homes. The data
shows, as long as there is a mixed value below the twenty (20%) percent mark, you
can actually have an increase in property value, as long as single-family homes are the
eighty (80%) majority. There are some stipulations like the building quality. It does
not seem like the developer will skimp on quality. Due to past experience among the
neighbors, there is a stigma in the neighborhood that has created some distrust with
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developers. The median or average home price in Rexburg as of March 2022 is
$900,000, but the size of the home is not being considered. The median listing value
is $700,000. The average per square footage is $279. The median home size is 2,400
sq. ft. If you take the $270 x 1,800 sq. ft., you end up with a $502,000 home, without
consideration of the property value itself. David believes at the high point, a ½ acre
lot in the Pine Brook DIV2 subdivision was selling at $67,500. More importantly, he
believes, if the developer can be held accountable, it will not decrease the home
values. He is worried about giving his full approval, knowing what is coming.
Doug Smith - 1009 Larch Drive - He sold property in 2007 to Curtis Ferney. The
property sat for a long time without any home building. Doug does not have a dog in
the fight anymore. He lives in Pine Brook DIV1 and has a shop in Pine Brook
DIV2. Doug has watched the lots along the freeway sit idle. Even in this crazy
market, the lots have not sold. Until recently, the original developer still owned eight
(8) of the lots. We no longer want to deal with Curtis. Todd has built nice homes in
our subdivision and has promised the residents he will take the highway lots and
build twin homes. The twin homes he showed Tuesday night are some Doug would
love to have as neighbors. Doug took a lot of heat from his neighbors when he built
his shop, but it did not decrease the value of surrounding homes. Some neighbors
had their homes appraised when Doug finished his shop, and the homes all appraise
for more money than when they were built. Having nice homes along the highway
will only enhance the neighborhood. The development of these lots will buffer the
highway noise and get rid of some of the weeds.
Cristy Priceler – (1:02:53) – Castle Pines lot 12 - 1054 Bannock in Idaho Falls - She
has drafted twin homes. Twin homes are designed differently. Twin homes feel like a
single-wide trailer. You can add things to make them look nice. The developer is
planning on AirBnb and renting the units; very few are purchased and lived in. The
person purchasing the twin homes are purchasing them to make money. The
clientele of these units creates a situation where the yards are not kept as nice and
other negative effects. Homeowners are putting a lot of trust in the developer, and
not so much in the purchaser of the twin homes.
Mary Zollinger - 1073 Greenside Loop – She was assigned to serve as the H.O.A.
president. Mary loves Pine Brook. She loves the people there, the variety of homes,
and she really cares about her subdivision. One of the common questions for the
H.O.A. is who is going to put the sound barrier in. Who is going to take care of the
noise? How will the subdivision be finished? The H.O.A board gave these questions
some serious thought. Todd Webb approached the H.O.A. around the first of the
year and presented what he would like to do. He would fight for the zoning. The
H.O.A. can only look at the submitted building plans and compare them again the
Covenants and Conditions of the subdivision. A concept has been presented, but no
building plans. Today, the H.O.A. worked on a contract with the developers, because
of the past history with the developer who did not follow through on his promises.
The contract states the developers will follow through on their concept for eighteen
(18) landscaped units. The berm will go in along Hwy 20 and plant trees. There is
some PTSD from being lied to over and over and over. She has faith the developers
and neighbors will come through this for the better. The H.O.A. letter has been
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created saying they will support the developers in this stated endeavor. Not all
signatures have been collected for either document.
Opposed:
Alexandra Holt – 862 Pine Brook Ln – Withdrew Letter. She thanked the
developers for meeting with the neighbors to provide clarity for their plan. For her,
the meeting communicated the developers can build beautiful homes as they shared
their concept. Unfortunately, a concept is not a contract, yet. While the H.O.A
members are looking to make an agreement, the twin homes are being built as a
proof of concept, so the developers can purchase the sixty (60) acres to the west of
the Pine Brook subdivision to build more twin homes. Alexandra is not interested in
being a guinea pig of that proof of concept. She has not seen Refuge Homes’ work,
yet, but concept plans have been shown by Aaron Richards. This Comprehensive
Plan Map change and Rezone creates dangerous territory where the previous
developer still owns these properties, he can still take the land and run. The applicant
listed the purpose of the application is a better use of resources. For her, she has to
look at the benefits to the community to determine the better use of resources.
Alexandra believes the developers would benefit from the use of the resources. She
does not see a rush to get these Hwy 20 lots built on, other than to have the
subdivision completed, especially since this seems to minimize the standards
established by the Rural Residential homes.
In reference to spot zoning, the subdivision is right on the borders of the city. Since
all the zoning around the parcels are not a similar zone, she wonders how this could
not be considered spot zoning. She read “Spot zoning is when zoning classifications of
comparable properties nearby are changed because those who asked for the change can develop them
and it benefits them.” Alexandra believes this rezone request would be spot zoning. The
homes are on ½ acre and 1 acre lots. She is against this proposal to keep the integrity
of her neighborhood Rural Residential. She has been a property manager of thirty-
eight (38) units and stated in her experience, renters do not take care of places they
do not own. She is against the change in the Comprehensive Plan and Rezone.
Chase Hendricks - 25 N 2nd E – He is an attorney in town and represents some
homeowners who live directly across from the lots shown tonight at 1111 Castle
Pines. His parents have lived in Pine Brook DIV1 for about twenty (20) years. Chase
represents counties and cities, much like Attorney Rammell. He appreciates the work
and diligence the H.O.A. has done. He has reviewed the Development Agreement
signed by the current developer with the city recorded in 2008. The Development
Agreement for Pine Brook was not part of the Commissioners’ packets. He believes
it is because a contract can be changed at any time. An interesting provision reads,
“lots that are not developed within three (3) years will have the sidewalk installed by the developer.”
He bets the landowners are putting in the sidewalks. Not too long ago, Sugar City
tried to enforce a contract. A new developer came in to request a change in zoning.
Zoning gives you the ability to build to that zone’s standards. In Sugar City’s case,
the zoning doubled the density. For this application, ownership of these properties
has changed since notification. Things change. A contract is not enforceable.
Cooperation with all the neighbors is needed to sue the developer. Those neighbors
directly affected end up shouldering the burden for the community. When the
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people moved in two months ago, they relied on this particular zoning, and build a
$700,000 home. Chase believes this is the very definition of “spot zoning”. The sale
of these lots is contingent on the Commissioners’’ decision, which is also contingent
on the sale of the lots across N 12th W for the Jensen farm. The zoning is the only
part that is legally binding. He appreciates the city making the Comprehensive Plan
Map change first. On pg. 70 in the Comprehensive Plan text, it reads “The housing
density in new areas should be located strategically around future neighborhood centers and located
along collector roads”. Density should be located near the collector road. That is not
how this development was planned out. The twin homes should have been built
along N 12th W, because this is where you want the traffic. Now, they will be located
at the back of the subdivision. In 2008, the request was for LDR1 for these lots.
Utilities are all about planning. This subdivision was engineered twenty (20) years
ago. This was not the density planned. A park was originally planned beside Hwy 20
was the original plan. Pine Brook DIV1 was built without sidewalks, so he would
argue if sidewalks in Pine Brook DIV2 are appropriate. On pg. 12 of the
Comprehensive Plan text, a question was cited, “Have conditions changed so that the plan
does not reflect the city’s preferred development patterns or its current goals? If this question cannot
be answered affirmatively, any amendment should be considered with caution.”
Ryan Hruska - 1111 Castle Pines Rd. – His home is directly affected by these lots
and any proposed changes in the Pine Brook community. The front of his home
faces east, directly looks at the properties being considered for the Comprehensive
Plan Map change and rezoning. The current Comprehensive Plan Map designated
the Pine Brook subdivision is Rural. There is no contiguous area that would denote a
change in the Comprehensive Plan Map. The zoning matches the Comprehensive
Plan Map. The subdivision is currently zoned as Rural Residential. The zoning to the
north and west is also Rural. Agriculture uses are located to the east and west. Pine
Brook is currently zoned properly for the City of Rexburg. The highway lots have
zero access to the highway. He repeated access and spot zoning concerns previously
stated. The proposed changes provide no benefits to the Pine Brook community.
These changes do not fit the current Comprehensive Plan Map, nor the zoning, nor
any land contiguous to it. He agrees there is a housing shortage and is aware of the
rise in property values both nationally and locally. Ryan understands the need to
build more affordable homes at affordable prices. This is not the appropriate
location. Twin Homes are more expensive than the homes in the Pine Brook
community. He referred to ten (10) more acres of zoning were added today in the
previous hearings. There are better areas in Rexburg that would better suit these
proposed twin homes. He and his family request the Commission deny these zoning
and Comprehensive Plan changes.
The Idaho Land Act was discussed. He is against the higher density and buffer by
going through the subdivision, feels this is a spot zone and should not be allowed.
Does not fit. There is a housing shortage however this is not the appropriate place to
build this type of housing.
Brand Mackert - 963 Pine Brook Ln – The change for these lots seems to have
moved really fast. He appreciates the meeting held with the developers. The answers
to the homeowners’ questions feel like the most honest they have received since he
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began living in the Pine Brook subdivision. In February 2023, he will have lived in
the subdivision for seven (7) years. He serves on the H.O.A. board, but he has had
to take a step back to keep up with other things in his life. Brand has not e-signed
the contract sent to the board members today. The subdivision subwater has been a
factor in the sale of the lots. The covenants state that the main floor has to have a
minimum 1,700 sq.ft. He believes a nicely built, single-family home will sell just as
well as a twin home. It was presented to him; a twin home would be easier for a
family to get into in today’s economy. Pine Brook Ln already sees a lot of traffic,
including construction traffic. Brand is opposed to this proposal because there is not
a need for twin homes. He wants the developers to build eight (8) homes and be
done. Brand wants to thank everyone for the additional information, but this has
come way to fast.
Tony Wade - 844 Pine Brook Ln – He is against twin homes being built along the
highway. The developer has proven if you build it, people will come, and they do not
have to be twin homes. He repeated traffic concerns for Pine Brook Ln and
comments for single-family homes instead of twin homes stated by Brand. This
morning he noticed his water pressure was less he fears this project will make things
worse. Developers want to make money at the expense of the property owners. They
want to sell million dollars homes instead of $700,000 homes. He did not attend the
H.O.A. meeting on Tuesday.
Travis Schwab - 1032 Larch Dr – He has lived in his home for five (5) years at a
stop sign, but it causes more of a slowdown of traffic instead of a stop at the corner
of Pine Brook Ln and Larch Dr. He shared concerns about the traffic. Travis did not
attend the Tuesday meeting. He agreed with the time, developer’s interest, and
wanted a traffic study prior to the decision.
Written Correspondence: None
Rebuttal:
Aaron Richard – He lives in a community with twin homes and asked the attendees
of the meeting if anyone else lived in this same situation. Two others indicated they
do. Aaron stated twin homes do not generate traffic. There are twenty-four twin
homes in his neighborhood. None of his kids have been run over. A Traffic Study is
part of the plat process. In twelve (12) years, no one has signed up to build there
$750,000 dream home on one of these lots adjacent to Hwy 20. No one wants the
highway in their backyard; there is no guardrail there on this bend. He is trying to
come in and create an interim, lifestyle product. The H.O.A. has agreed these units
will be at a higher-dues structure, including full maintenance of the yard, snow
removal and joint infrastructure, so it could be a lock-and-leave buyer. There is a lot
of demand for these kinds of buyers. These lots are ½ and 1 acre lots, giving plenty
of room for children to play. Aaron has worked in the industry for twenty (20) years,
and he has never originated a lawsuit or been part of a lawsuit. He desires to work
with the community, and this is why they worked with the H.O.A. and homeowners
to write a Development Agreement. The plan is to take a ½ acre lot and split it into
¼ acre lots sixty-two (62’) feet wide with a fifty (50’) feet wide product. The building
itself will be one hundred (100’) feet wide. The buildings will not look like trailer or
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modular homes but will be attractive. No one can control rentals. Any property by
state law can become a rental. If this constitutes “spot zoning”, then we have it all
over town with folks living together. In his opinion, the request would not have been
made if there were not already successful examples in town. The developers are
coming in wanting to be creative, solve a problem, and will not replicate anything
across the street. This is a stand-alone zoning request.
Todd Webb – In the CC&Rs 4.1.6, it says “no accessory structure can be built upon a
building lot until after a home has been built on an adjacent lot owned by the same owner.” Some
of the covenants have not been followed. Todd owns three (3) of the lots as a
condition to purchase the lots along Hwy 20. The only way he can make it pencil is
to build the smallest house possible as inexpensively as he can. If I can build a twin
home, he will build something to try to lessen the highway noise.
Chairperson Smith asked if anyone else would like to speak. She closed the
public input portion of the hearing at 8:25PM.
Conflict of Interest? – Chairperson Smith asked the Commissioners if they have a
conflict of interest or if they have been approached by any parties relative to this
particular subject. If you believe your prior contact with respect to this subject has
created a bias, you should recuse yourself, otherwise at this time please indicate the
nature of your conversation or contact. None.
Eric asked legal counsel about how much weight can be placed on a Development
Agreement and the contract between the H.O.A. and the developer. Attorney
Zollinger can rely on the fact the developers cannot reduce the size of the lots
smaller than ¼ acre. A re-platting will be necessary to make the changes to the size
of the lots. Eric asked about the possibility the units can be resold. Attorney
Zollinger stated if the contract is well-written, it will have an assigns and errors
paragraph, which means if you get out of this contract, whoever buys the land from
you will inherit the same obligations. The reason why the Commissioners do not
have a copy of the Development Agreement is because it has nothing to do with the
Planning & Zoning Commission. The developer for Pine Brook has been drug back
to comply with a number of upgrades he committed to. Not all the agreements have
been completed, but the city did exact on behalf of the subdivision, a number of
items stated in the Development Agreement.
Attorney Zollinger continued as far as spot zoning, there are spot zones and there
are illegal spot zones. The difference between a spot zone and creating a zone in the
middle of an area is in order for it to be illegal needs to fit the definition of the
Supreme Court. In essence, it needs to be inconsistent with the adjacent properties
or the surrounding area. He fails to see a difference between single-family residential
living in Rural Residential and the single-family residential living in Low-Density
Residential that the court would accept. Spot zoning occurred in every inch of the
city when we first put a zone on it, because there was nothing around it. An example
would be someone is given the ability to put a commercial enterprise in the middle
of a residential neighborhood. That is then inconsistent with the surrounding
properties and only to the commercial enterprise’s owner only.
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David asked about the platting of the Pine Brook subdivision. Would this require a
new plat? Attorney Zollinger stated the change would require a plat amendment of
they could take the nine (9) lots and plat over the top of the nine (9) lot area. David
asked how much say does the Commission have when considering a plat in
determining the density of the lots? Attorney Zollinger confirmed when this plat
comes before the Commission and it has more than the eighteen (18) lots, the
Commission could state the request is inconsistent with the neighborhood. The
Commissioners and City Council are to look to the governmental powers given to
cities that restrict what the bodies are to look at. The bodies can consider
infrastructure, traffic, and safety. David continued if Staff says the roads can handle
thirty-six (36) lots, the roads can handle thirty-six (36) lots, and all city services can
be provided, can the Commission then say, it is inconsistent with the neighborhood
contract, therefore, we will not grant this plat. Attorney Zollinger will always be
uncomfortable if you are relying on their contract but not if you acknowledge their
contract and say everyone agreed that it would be too many lots for that particular
portion of the Pine Brook DIV2 subdivision. David confirmed this would be in
their policing powers.
Vince asked for the Development Code Summary sheet to be shown. (Development
Code Summary sheet was reviewed for accuracy and corrected as needed to show the
code changes.) LDR2 allows one building with two single-family units including
either a twin home or a duplex. A twin home is two units in one building and the
units are configured side-by-side. Alan said a duplex is one building, usually with one
upstairs and one downstairs unit, each for a single-family home. Vince says the
Commission needs to omit any thinking about a project, any specifications of
measurements, a contract, or the H.O.A. Frankly, he has never done business with
Aaron. Look at the maximum capability of the request. It would be hard for me to
have built in a subdivision, with the understanding the subdivision is all in the same
zone, to have the zone changed. Vince lives in an area with some beautiful twin
homes. He reminded the Commissioners of a recent presentation where this
subdivision was discussed, and water had to be dumped into a canal to keep fresh
water because of the lack of development. The subdivision has filled in drastically
since that time. Have we given enough time for the lots to be sold as single-family
homes? Eric said most of the development has not filled in. Those at the entrance
will be the last ones to fill; this does not seem like a great argument. Chairperson
Smith confirmed the lots have been on the market for a long time until they were
purchased in January. There are homes that have been built to the south that are
located very close to the highway. David is sympathetic to the project but will agree
with Vince’s comments and the focus on the land use. He is concerned about the
nature of changing the land use in the middle of a development designated a certain
way. He is on the fence. He does not feel this is spot zoning. Inconsistent and
detrimental are the two words he has learned about spot-zoning. There is a lot of
leeway in inconsistency. He appreciates Mr. Zollinger’s explanation. The request is
different in the designation around it. Eric says this is after the fact. He hears the
comments about planning twin homes against the freeway. The plat was not planned
this way. The timing of the request at the conclusion of the development does not sit
right with him. Chairperson Smith said the agreement with the city and the
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developer, does this request have anything to do with that. What was the agreement?
Attorney Zollinger says the agreement was accurately related. The berm with
vegetation on top of it was one of the items as presented today. Pine Brook DIV1
residents were concerned about an LDR1 zone; they felt it should continue to be
made available as a rural residential development. Staff feels the request is acceptable
as a look toward the future. There is nothing rural about this subdivision; it is being
built to city standards on ½ acre lots. The subdivision is large in size, but the
argument he feels they should have all been making is we like the space. In joking he
continued, there are no cows in the subdivision; there is a pole barn with no animals.
One of things the Commission should consider is are we mis-designating our Rural
Residential 2. Should it be an LDR ½? We are not trying to design farm living. We
are trying to preserve ½ acre lots as a neighborhood. In RR2, we required sidewalks
and curbing. We turned them into large, city parcels. This is consistent with how
city’s grow. The city has grown from 11,000 to 40,000. The Commissioners’ job is to
make the best decision for the day you are sitting on this Commission for the future
of the community. He is offended by any implication twin homes are occupied by
poor people. Dr. Zollinger grew up in a twin home right next door to Attorney
Zollinger in a single-family home. He calls them connected homes instead of twin
homes. The discussion should be about the size of the parcels and the number of
units.
Brad Wolfe’s concern is what are the max number of units allowed on each lot?
Attorney Zollinger said there are nine (9) lots, each with 1 building containing two
(2) units equaling eighteen (18) units. Brad does not have any other questions and
his is in favor. A Planned Unit Development would need to come before the
Commission for any additional density with a plat. Attorney Zollinger said the
contract is enforceable. The contract with the H.O.A. is valid with the developers’
signatures. Eric’s concern is the timing that he does not feel he has had enough time
to make a proper decision. He would be more apt to agree if the H.O.A. also signed
agreement. Vince confirmed the contract states the developers will not come back
and ask for more units on smaller parcels. Attorney Zollinger said right now if you
vote and there is not a contract. If you vote on the Comprehensive Plan without the
contract, the next owner will not have to comply. Many voting in support are relying
on the integrity of the developers. Do not split these apart. Consider them together.
Vince said the Comprehensive Plan request is for LDR1-MDR1, and the granting of
a zone is dependent on the appropriateness of the request. Eric is sure which way he
is leaning, and he would rather feel more comfortable about an agreement between
the parties. Chairperson Smith counseled the Commission to act on both requests
at the same time. David feels the request is consistent, but he would be more
comfortable with a more solid agreement. Bruce feels similarly. Chairperson Smith
said there is a feeling from the audience that this has happened quickly. Eric feels it
would be a better solution for the developers to table the applications. Vince said if
we vote in favor of the applicant, this will allow the applicant to go to LDR2.
Attorney Zollinger clarified the applicant would be able to build the nine structures
immediately upon approval. The lot split would not come back to the Commission.
MOTION: Motion to recommend to the City Council to approve (22-00102) –
the Comprehensive Plan Map change from Rural to LDR1-MDR1 for the Pine
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Brook DIV2 Blk6 Lots 16-24, because this will create an appropriate step from
the highway to the rural residential density area and is, therefore, appropriate
to the overall plan. Action: Approve, Moved by David Pulsipher Seconded by
Sally Smith.
Commissioner Discussion on the Motion: None
VOTE: Motion passes (summary: Yes = 5, No = 2).
Yes: Bruce Casper, David Pulsipher, Sally Smith (Chairperson), Todd Marx,
Brad Wolfe.
Against: Eric Erickson and Vince Haley (Vice Chair)
10. (22-00103) - Pine Brook DIV2 Blk6 Lots 16-24 – Rezone
from Rural Residential 2 (RR2) to Low-Density
Residential 2 (LDR2). Adjacent properties are zoned
Transitional Agriculture (TAG) across US Highway 20 and
Rural Residential 2 (RR2) to the north, south, and west. The
properties are 4.727 acres. – Todd Webb (action) (02:38:19)
Applicant Presentation: Aaron Richards – The presentation and information he
would present is identical to the previous application.
Commissioner Questions: None
Staff Report: Alan Parkinson – Staff has reviewed this application for rezone. The
request has met all the requirements for sewer and water. Staff recommends the
application to the Commission to recommend to City Council.
Commissioner Questions: None
Chairperson Smith opened the public input portion of the hearing at 9:15PM.
Attorney Zollinger clarified all the Commissioners were present for the previous
comments and they can be considered in this application as well for purposes of
deliberation.
Favor: None
Neutral: None
Opposed:
Chase Hendricks – 25 N 2nd E – He brings up the Development Agreement and
the struggles holding the developer to as stated. He believes in contracts, but he
would guess no one has vetted the contract from a legal standpoint. Chase wants to
emphasize the residents of Pine Brook relied on the zoning of their neighborhood.
Land should not be changed in a piece meal fashion. There is no benefit as defined
in spot zoning. In the Comprehensive Plan it reads, “an existing neighborhood, consider
options for comparable quality design consistent with existing character. Design standards may be
considered in areas where design compatibility may have an impact on the quality of neighborhoods.
Explore the possibilities of requesting area studies to be prepared by the developer showing the
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relationship of the subdivision to the neighborhood in which it is a part. In relation to the street
system, the recreation sites, and other facilities and services should be shown.” The time is too
quick. A Traffic Study has been completed. You are not supposed to sell lots prior to
them being split. At the end of development, it is not appropriate to change the
zone. Please deny the zone change.
Mitch Holt – 862 Pine Brook Ln – If we are going to consider the contract between
the H.O.A. and the developer. With all of the new people who have moved into the
neighborhood, this contract does not give a fair representation of the Pine Brook
residents.
Brand Mackert - 963 Pine Brook Ln – The contract was a Doc-U-Sign document
sent to the H.O.A. members at 3:12PM today. The timing is too fast for everyone to
review. He can see a few H.O.A members have signed the document.
Written Response: #1 - Aaron & Dara Wells
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Rebuttal:
Aaron Richards said the contract has been signed by all parties except the H.O.A.
The contract is fully executed. The zoning is the protection for the landowners. The
contract has been conducted in good faith.
Todd Webb - Mary sent the contract out last night too to let the H.O.A review the
document. This is part of the request that came from the Tuesday neighborhood
meeting. Attorney Smith asked if the H.O.A. board or all the residents are signing
the contract. Only the board will sign the contract. Todd said the developers agreed
to what was requested last night.
Chairperson Smith closed the public hearing.
Conflict of Interest? – Chairperson Smith asked the Commissioners if they have a
conflict of interest or if they have been approached by any parties relative to this
particular subject. If you believe your prior contact with respect to this subject has
created a bias, you should recuse yourself, otherwise at this time please indicate the
nature of your conversation or contact. None.
Commissioner Discussion: Chairperson Smith said since we have approved the
Comprehensive Plan Map change, the rezone decision needs to be made to protect
the neighborhood. Todd Marx said the same arguments stand as before. David said
his vote is based on regardless of the contract, the zone change makes sense to him
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and the appropriateness of the land in this part of the city. He would encourage the
developers to work with the enter into the arrangements that help people feel more
comfortable with the end result. In the end, the land use makes sense. Eric says the
current zoning RR2 would not be compatible with the Comprehensive Plan. Vince
said the current designation is from LDR1-MDR1. Eric confirmed the RR2 zone is
now not compatible with the current Comprehensive Plan Map designations. The
zoning would necessarily have to change. Attorney Zollinger clarified the zone
cannot change unless it is conforming with the Comprehensive Plan Map. You can
have a non-conforming zone with the Comprehensive Plan, because you are
directing changes for the future. David confirmed it is basically grandfathered. Brad
said he agrees the contract is a great idea, but he does not see that it has any ; it is
liking them to do their work. There is an article on the table on rather or not there is
a contract; this has nothing to do with the Commissioners’ decision. He is in favor of
the application. Vince thinks of the residents; if he was in the subdivision; he does
not hate twin homes; but if he would have built a nice, single-family home and the
twin homes were coming in. It is hard for him to see the other side of the coin.
There are a number of houses that are not in accordance with this change. He does
not feel the Commission is doing the residents justice based on what they were told
when they bought land in the subdivision. If the residents were all in agreeance, he
would be for the change, but he is against. Eric agrees. There has not been enough
vetting with the residence; he is against. David said the Commission is a
recommending body. Vince clarified to the audience the City Council meeting would
not be a public hearing.
MOTION: Motion to recommend to the City Council to deny (22-00103) the
Rezone from Rural Residential 2 (RR2) to Low-Density Residential 2 (LDR2)
for Pine Brook DIV2 Blk6 Lots 16-24, because too many new homes in the
area without full agreement by the residents and the residents’ unfulfilled
promises , Action: Approve, Moved by Vince Haley, Seconded by …..
Attorney Zollinger said the motion could not be made this way, because it is
pandering to the crowd. The motion cannot be about the individual properties. The
motion has to be based on the job the Commission is charged with, which is the best
interest of the community as a whole. Vince Haley rescinded his motion.
MOTION: Motion to recommend to the City Council to deny (22-00103) the
Rezone from Rural Residential 2 (RR2) to Low-Density Residential 2 (LDR2)
for Pine Brook DIV2 Blk6 Lots 16-24, based on the inconsistencies of the
neighboring properties, Action: Approve, Moved by Vince Haley, Seconded
by Bruce Casper.
Eric said he would strengthen motion based on the inconsistencies with the adjacent
properties. He does not feel this would change Vince’s motion. Chairperson Smith
said by recommending the Comprehensive Plan Map change, this motion leaves the
parcels open to any zoning that would fit in the LDR1-MDR1 designation. Vince
said the applicant could come back and request up to MDR1. Even if the zoning is
approved, the applicant could make the same request.
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VOTE: Motion denied (summary: Yes = 4, No = 3).
Yes: Bruce Casper, Eric Erickson, Vince Haley (Vice Chair).
Against: Sally Smith (Chairperson), Brad Wolfe, Todd Marx.
MOTION: Motion to recommend to the City Council to approve (22-00103)
the Rezone from Rural Residential 2 (RR2) to Low-Density Residential 2
(LDR2) for Pine Brook DIV2 Blk6 Lots 16-24, because the change is
consistent with the way the city is going and the zone change acts as a
freeway buffer, Action: Approve, Moved by Brad Wolfe, Seconded by Todd
Marx.
Commissioner Discussion: David asked what happens with a tie vote. Attorney
Zollinger said there are seven people. If there was a tie, the motion would consider
failing.
VOTE: Motion denied (summary: Yes = 3, No = 4).
Yes: Sally Smith (Chairperson), Todd Marx, Brad Wolfe.
Against: Eric Erickson, Bruce Casper, Vince Haley (Vice Chair), David
Pulsipher.
11. April 20, 2022, Alan Parkinson presented the application (22-00102) to City Council.
Planning and Zoning recommendation to approve a Comprehensive Plan Map amendment
at Pine Brook DIV2 Block 6 Lots 16-24 from Rural to LDR1-MDR1 #22-00102.
Designated as Resolution 2022 – 09 if motion passes – Alan Parkinson
Planning and Zoning Administrator Parkinson reviewed the request to amend the
Comprehensive Plan Map. Council Member Flora said the decision for this request is more
difficult because the Planning and Zoning Commission recommended approval of the amendment
to the Comprehensive Plan Map; however, they denied the zone change. Generally, both requests
are either approved or denied. She said most of the Council Members have watched the Planning
and Zoning Meeting and read the meeting minutes regarding this request.
Council Member Johnson said the Comprehensive Plan Map is a vision or a guiding document.
Most, developers use the map to gauge how the city is developing in certain areas of the city. One of
the purposes of the Comprehensive Plan is to preserve the community. She feels this change to the
Comprehensive Plan doesn’t fit with the existing development. The Low Density Residential One
(LDR1) and Medium Density Residential One (MDR1) Zones do not fit the existing development.
Council Member Walker said he is in favor of the Comprehensive Plan Map change because it
gives the developer the opportunity to sell the lots. The zone change would allow for twin homes
and this type of housing is needed in the community.
Council Member Erickson said he has concerns with making a rushed decision. The
neighborhood started developing at the current zone and now to change the zone to a higher density
is not fair to the existing property owners. He understands the property lots closer to the highway
20 | Page
may be more difficult to sell because of the noise; however, there are housing developments all
along Interstate 15.
Council Member Chambers said the only way to change the density in this subdivision is to
change the existing plat to these nine lots. A City Council decision would be needed to change the
plat.
Council Member Flora said if the developer knew these lots were going to be difficult to sell
because they are against the freeway. When the original plat for the subdivision was completed, and
the existing zone was requested. Why were the LDR1 and MDR1 zones not originally requested? If
they foresaw that these lots were going to be hard to sell. Why did they not request this higher
density zone from the beginning?
Council Member Flora said she doesn’t see a harm in having twin homes; however, the property
owners were informed the lots sizes would be a half-acre. Some of the homes are still being built
and the developer now desires to build twin homes. If the property owners would have been
informed before purchasing a lot that there would be twin homes in the neighborhood it would be
less difficult to decide.
Council President Busby said there was discussion during the Planning and Zoning meeting
regarding a sound barrier berm in the development agreement. He questioned the reason why the
sound barrier has not been built. Public Works Director Davidson explained he would need to
review the development agreement for this subdivision regarding the sound barrier; however, he
believes the sound barrier was for the development on 12th West and not for Pine Brook.
Discussion regarding the development agreement for the Pine Brook subdivision and installation of
the sound barrier berm. Mayor Merrill said one of the aspects of the Comprehensive Plan Map is
does this consideration of the zone change does it help the developer to the detriment of the
community. Is this request a detriment to the community?
Council President Busby said there have been 54 signatures and 19 letters received from residents
that are opposed to this request. Council Member Erickson said that is most of the property
owners.
Council Member Walker moved to approve Resolution 2022 – 09 Comprehensive Plan
Map amendment at Pine Brook DIV2 Block 6 Lots 16-24 from Rural to LDR1-MDR1;
Council Member Chamber seconded the motion; Mayor Merrill asked for a vote:
Those voting aye Those voting nay
Council Member Chambers Council Member Johnson
Council Member Walker Council Member Flora
Council Member Erickson
Council President Busby
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The motion failed.
12. April 20, 2022, Alan Parkinson presented the application to City Council.
Planning and Zoning made no recommendation to rezone from Rural Residential 2 (RR2) to
Low Density Residential 2 (LDR2) at Pine Brook DIV2 Block 6 Lots 16-24 #22-00103.
Applicant is making an appeal to the City Council for reconsideration. – Alan Parkinson
City Attorney Zollinger said Resolution 2022 – 09 Comprehensive Plan Map amendment at Pine
Brook DIV2 Block 6 Lots 16-24 from Rural to LDR1-MDR1 failed. By passage of law the rezone
also failed.