HomeMy WebLinkAboutBeth Hendricks 941 Larch Ave - Pinebrook Rezone 07-21-22To: The City of Rexburg's City Clerk, Planning and Zoning Committee/Alan Parkinson,
City Council Members
From: Beth Rigby Hendricks
Date: July 20, 2022
Re: Opposition to the (22-00418) - 11 Lots along Hwy 20 in Pine Brook
DIV2 - Comprehensive Plan Map change from Rural to LDR1-
MDR1. A request to change nine (9) of these lots to LDR1-MDR1 earlier
this year was denied (22-00102). The parcels for this request total
6.51 acres. - Todd Webb, Aaron Richards
Opposition to (22-00419) - 11 Lots along Hwy 20 in Pine Brook DIV2 -
Rezone from Rural Residential 1 (RR1) to Low -Density Residential
1 (LDR1). Parcels along Hwy 20 were originally LDR1, but when Pine
Brook DIV2 was annexed in 2007 (07-00209), the parcels along Hwy 20
were rezoned to Rural Residential 2 (RR2). A request to change nine
(9) of these lots to Low -Density Residential 2 (LDR2) earlier this year
was denied (22-00103). The parcels for this request total 6.51 acres. -
Todd Webb, Aaron Richards (Action)
I respectfully reject and ask that the Planning and Zoning Committee, City Council Members,
and Alan Parkinson Deny the Rezone Application — File #22-00419 and Comprehensive Plan
Map change Application — File #22-00418 the proposed change to the Comprehensive Plan.
Following are the reasons why I am asking for the City to Deny the proposed changes:
1. As you are aware, we already went through this process in April. I appreciated that
Council Member Flora recognized and pointed out to the other Council members that
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." (City Council
Minutes, April, 20, 2022, pg. 9) We were told when we were annexed into the City that
those would be half -acre lots and we only agreed to be annexed if the rest of Pine Brook
would stay half -acre lots. I do not agree to allowing the developers to now change those
lot sizes to smaller than one-half acre, causing more foot and vehicle traffic, more
congestion, and more strain on existing resources in the subdivision. I request that
those lots be exactly as currently plated: one-half acre with single homes on each one-
half acre.
2. When the original five homeowners met with the original developer, Mr. Ferney, he told
us he would build a berm by the freeway by the lots now under consideration. That
promise never came to fruition so when we met with these new developers at a
meeting before the P&Z meeting, we told these developers we, as homeowners, would
help them in completing the berm and making a sound and vehicle barrier. We would
help them in areas such as marketing the homes, use of large moving equipment,
manhours and one person even said we should all donate a small amount of money,
which would amount to a good amount of money, to bring in dirt and create a nice
sound barrier by the freeway. This should have alleviated the developers concerns
about selling those homes. They will be like the rest of the homes in Pine Brook 2 and
with the growth at the University, these homes would be very desirable for faculty and
staff moving to this area. We told these developers that we understood that it may be
more difficult to sell those one-half acre homes by the freeway, but we were willing to
help. We weren't going to just leave them trying to sell those homes and build the berm
on their own. We were, and still are, willing to help. This is a subdivision of residents
who have resources to help but we need the developers to respect our request and
wishes too: keep all the lots as one-half acre with single homes on each lot.
3. An actual plan, plat change application or proposal is conspicuously absent. One major
concern is that changing the zoning from RR2 to the LDR1 would significantly change the
density and engineering and types of uses going from a Zoning limiting development of
%2 acre (21780 sq ft) to lots as small as 8,000 sq ft. and 10,000 sq. ft for a duplex and two
5,000 sq ft. lots for a twin home in a LDR1 zone. This Zone could exponentially increase
the density the Developer(s) is allowed for the property solely that the Developer may
increase the number of residences into our community, at his great profit and the
homeowners and the City's loss. Additionally, different types of uses are allowed in this
LDR1 zone. A required Plat Change Application should be presented by the Developer
for the Planning and Zoning Commission to know what is actually planned to happen
before the Commission should act. Once the zoning is given, a Developer has a legal
right to do anything allowable in that zone and it can't be undone. This Application will
not meet the Goals of the Rexburg Comprehensive Plan. See b. below'
4. Increased density wasn't initially planned for or built by the original developer as
required and approved by the City. This subdivision was planned, engineered and
constructed with ONLY nine homes to be built on those eleven lots and no more. The
developer is now seeking to alter this plan.
' Comprehensive Plan Goals include
a. To improve the physical environment of the community as a setting for human activities -to make it more functional, beautiful, decent,
healthful, interesting, and efficient.
b. To promote the public interest, the interest of the community at large, rather than the interests of individuals or special groups within the
community.
c. To facilitate the democratic determination and implementation of community policies on the physical development.
d. To affect the political and technical coordination in community development.
e. To inject long-range considerations into the determination of short-range actions.
f. To bring professional and technical knowledge to bear on the making of political decisions concerning the physical development of the
community.
g. To maintain high levels of interaction with the public for planning and decision -making. Encourage citizen input when considering code
modifications.
5. Before this change should even be considered or evaluated by the Commission to
account for this density increase, an Engineered Impact Study detailing the increased
sewer flow, traffic, stormwater runoff should be completed. According to Idaho Code
67-6511(2)(a) "Particular consideration shall be given to the effects of any proposed
zone change upon the delivery of services by any political subdivision providing public
services." With this increased flow in our community that was built and zoned with the
current allowable density, are we assured that the one lift station for the entire
subdivision is capable of collecting and pumping the increased flow? Furthermore, the
Comprehensive Plan states, "Explore the possibility of requesting area studies to be
prepared by developers showing the relationship of the subdivision to the
neighborhood of which it is a part. Access to the general street system, school,
recreation sites, and other facilities and services should be shown." Pg. 120. This
application hasn't conformed to the Comprehensive Plan's goal to bring professional
and technical knowledge to assist Planning and Zoning Decisions.
6. There is a very large and deep pond in the subdivision. What is the greater probability of
more children and adults drowning in the pond? Placing additional foot traffic of kids
walking down the upper part of Larch Drive is a significant risk because that
Development was never planned for sidewalks or to handle a lot of foot traffic. Is the
City willing to take on this increased liability? The Comprehensive Plan Housing Goals
also states, "Ensure safety in and accessibility between all residential areas." The
Application does not conform to the Comprehensive Plan's Goal to make the PineBrook
Subdivision 'make it more functional, beautiful, decent, healthful, interesting, and
efficient.'
7. We believe the application for the zone change would be "spot -zoning" contrary to
Idaho and Federal law; i.e., well founded, with not only Idaho but United States law to
the contrary that Spot Zoning is illegal. Spot Zoning refers to a change in zoning of a
particular parcel or parcels that is out of character with the surrounding area and the
Comprehensive Plan and is done for the benefit of the particular landowner rather than
for the benefit of the community as a whole. Pinebrook is surrounded by nothing that
resembles what the Developer is proposing. The Supreme Court has held:
In Evans, this Court clarified that there are two types of spot zoning. The first type,
referred to as type one spot zoning, "may simply refer to a rezoning of property
for a use prohibited by the original zoning classification." Id. "The test for whether
[type one spot zoning] is valid is whether the zone change is in accord with the
comprehensive plan." Id. at 77, 73 P.3d at 90. "[T]he question of whether a zoning
ordinance is 'in accordance with' the comprehensive plan is a factual question
which can be overturned only where the factual findings are clearly erroneous."
Friends of Farm to Market v. Valley County, 137 Idaho 192, 200, 46 P.3d 9, 17
(2002). The second type, referred to as type two spot zoning, "refers to a zone
change that singles out a parcel of land for use inconsistent with the permitted
use in the rest of the zoning district for the benefit of an individual property
owner." Id.
Taylor v. Canyon Cty. Bd. of Comm'rs ("Taylor 11"), 147 Idaho 424, 436, 210 P.3d 532,
544 (2009) (Burdick, J.)).
From the Idaho Land Use Manual, typically relied on as authoritative, "The Supreme Court
has reiterated in Neighbors for the Preservation of the Big and Little Creek Community v.
Bd. of Cty. Commis of Payette Cty., 2015 WL 5655521 (Idaho Sept. 25, 2015) (Horton, J.),
the type one/type two analysis." The Court has clearly settled in on the type one/type
two analysis. The analysis begins by assessing whether the rezone is in accord with the
Comprehensive Plan. In Neighbors, the Court said that all that is required to meet the
type one test is that the Comprehensive Plan be amended prior to the rezone to say that
the use is permissible. The type two analysis in Neighbors, the Court observed that the
county justified its decision because there were five other industrial uses within five miles
of the rezoned land (CAFOs and a landfill). That was enough to convince the Court that
the County had not singled out this property for special and inconsistent treatment.
For this application, during your, the Commission's discussion and review, this is clearly
not in conformance with the current Comprehensive Plan because you will have to change
it to enable the current application to LDR2 and for the reasons set forth in this letter.
Furthermore, this application is a violation of Type 2 "spot zoning' and the goals of the
Comprehensive Plan because it simply singles out the application parcels of land for use
inconsistent with the permitted use in the rest of the Zoning District for the benefit of an
individual property owner. Like the Neighbors decision, the commission can't find that a
similar LDR2 zone is less than a mile away from the applied for property in PineBrook that
has already been filled in with homes.
8. Was proper notice supplied in this case? Idaho Code 67-6509 clearly states, "The
planning or planning and zoning commission, prior to recommending the plan,
amendment, or repeal of the plan to the governing board... The commission shall also
make available a notice to other papers, radio and television stations serving the
jurisdiction for use as a public service announcement. Notice of intent to adopt, repeal
or amend the plan shall be sent to all political subdivisions providing services within the
planning jurisdiction, including school districts and the manager or person in charge of
the local public airport, at least fifteen (15) days prior to the public hearing scheduled by
the commission." Based upon these requirements, we hope that all of this happened
because several homeowners said they have expressed concerns about what is actually
being proposed. Regardless of the public notices for making these types of changes,
there has been a tremendous amount of miscommunication to the homeowners and
property owners.
9. What is also absent from the documents I received is the current Development
Agreement, that is the current and binding Legal Contract between the City and
Developer for the P&Z to consider, which has the full force of law that can guide you
and us in your decision -making on this current application and a further goal of the
Comprehensive Plan. This matter should be tabled so that the Commission has complete
understanding of the current requirements of the Developer to guide them in any new
additional requirements. We purport that the current Comprehensive Plan and Zoning
Plan are sufficient and legal for any contractor or buyer to rely upon. No changes are
required for Pinebrook 2. Is there additional land being considered to be developed and
annexed into the City? It appears that water and sewer have already been extended
across 12th West. If so, what is the purpose of extending these services?
10. 1 do not agree with the Comprehensive Plan Map Application and Zoning Change
because we have bought this property and placed our home knowing that the
Comprehensive Plan had a current zoning of Rural. It appears we have detrimentally
relied on this understanding if these changes can occur so simply and with a developer's
desires. We believe the City should not consider this change in a new subdivision that is
almost completely built out. These new changes will devalue our homes, increase
significantly the number of people that walk and drive our streets, and increase the
density of homes. This request is an example of Land Speculators changing what has
already been planned. We implore the Commission to manage that growth in a fashion
that makes neighborhoods and communities in the great City of Rexburg a measure of
consanguinity, efficiency, and just simply use good planning. To go in and change nine
lots out of the built -out Pinebrook 1 and 2 area, piecemeal, is not good planning that
would single out the Developer's interests, against those of the Community as a whole
and contrary to the Comprehensive Plan
11. Any time a developer requests to change the Comprehensive Plan before he can get his
requested zoning is letting him save a few extra dollars out of his development and a
complete contradiction of detailed planning that the City has tried to do over countless
years through previous Comprehensive Plan hearings and discussions. Yes, our
community is changing with all the growth; however, this should be done in a thoughtful
and detail -minded manner that actually 'plans' where and what we want our
community to be and not allowing developers to fit square pegs into round holes.
Anything less would just be capitulating to a developer for nothing more than his
enrichment to the detriment of the existing homeowners.
12. In a RR2 zone that requires % acre lots, the Developer would currently have to build nice
single-family homes. If the Developer gets the applied for Zone LDR1 as he has
requested, he could then put homes on less than % acre. I ascertain that these
developers only want the changes so that they may place more homes, and double or
triple their residence units on those lots. I am not in favor of this proposal. The
Developer(s) has stated that they haven't been able to sell the parcels because they are
along the highway. But it is obvious that these parcels have only been for sale as a
group deal and not for individual sale. Perhaps if this matter is tabled to allow the
Developer(s) to complete a detailed amended Plat first before the zone change is
approved, this could alleviate some of my concerns. As is contemplated as a housing
goal in the Comprehensive Plan, "In existing neighborhoods, consider options for
compatible, quality design consistent with existing character. Design standards may be
considered in areas where design compatibility may have an impact on quality of
neighborhoods."
13. Furthermore according to Idaho Code 67-6511 "An amendment of a zoning ordinance
applicable to an owner's lands or approval of conditional rezoning or denial of a request
for rezoning may be subject to the regulatory taking analysis provided for by section 67-
8003, Idaho Code, consistent with the requirements established thereby." This would
give the current homeowners and lot purchasers an alternative to pursue recourse
against the City for the loss of value to their homes after they bought homes as short as
two months ago and are now surprised by the proposed Applications.
14. It is unconscionable to allow a Developer to change and significantly increase the
density and design of a subdivision at this late hour after all of the other homes have
either been built or lots have been sold. Each resident has purchased a home or lot with
a certain expectation and reliance on what was previously agreed upon between the
Developer and the City. This is simply a Developer(s) coming in and squeezing out the
most profit he can with no concern to actual good planning strategies for proper
residential development to only line his pockets, move on to the next existing
community and do it again. As one of the overall goals of the Comprehensive Plan
states that Developments, "To promote the public interest, the interest of the
community at large, rather than the interests of individuals or special groups within the
community."
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Beth Rigby Hendricks