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HomeMy WebLinkAboutRFD - 22-00520 - 742 Nina Drive - Rezone from LDR1 to MDR1 1 | Page #22 00520 Rezone from Low-Density Residential 1 (LDR1) to Medium-Density Residential 1 (MDR1) 742 Nina Drive 1. July 14, 2022, An application was received for a Rezone from Low-Density Residential 1 (LDR1) to Medium-Density Residential 1(MDR1) from Wendy Heder. Trust paperwork was received. 2. July 18, 2022, Fees were paid. 3. July 25, 2022, Staff Reviews were completed. Notice was sent to the newspaper to be published on July 29th and August 5th, 2022. 4. July 27, 2022, Notice was mailed to all property owners within 350’. 5. August 9, 2022, Notice was posted on the property. 6. August 18, 2022, Alan Parkinson presented the application to the Planning & Zoning Commission. (22-00520) – 742 Nina Dr - Rezone from Low-Density Residential 2 (LDR2) to Medium-Density Residential 1 (MDR1). The property is located in the Ricks-Palmer subdivision. The property is 0.2 acres. – Wendy Heder (action) (2:04:30) Staff Report: Alan Parkinson – The request is for a single parcel in the Ricks-Palmer Subdivision. The Ricks-Palmer subdivision was recorded in March of 1980. The current zone is Low-Density Residential 2 (LDR2) and the applicant is requesting Medium-Density Residential 1 (MDR1). The parcel is contiguous to zoning of Medium-Density Residential 1 (MDR1) in the Mill Hollow Manufactured Home Community. Staff reviewed the request and the request matches the Comprehensive Plan. The lot is currently serviced and the request will not demand a change in utilities. 35 North 1st East Rexburg, ID 83440 Phone: 208.359.3020 Fax: 208.359.3022 www.rexburg.org Reason for Decision City of Rexburg 2 | Page Commissioner Questions: Is the lot vacant? Alan answered, no, there is a home on the property. Brad confirmed the agenda has an error for the current zone. Brad asked what the current use of the home is. Alan said the home is a single-family home. Randall asked if there was a fence line along the south side of the Ricks-Palmer properties from the LDR2 zone to the MDR1 zone. Alan believes that there is an existing fence as a buffer from the Manufactured Home Community. The density of LDR2 will allow single-family homes and duplexes or twin homes. The MDR1 density is sixteen (16) units per acre. The land is 0.2 acres. The maximum number of units allowed for this parcel would be two (2) units in MDR1. There is not sufficient square footage for two units in the current LDR2 zone. Applicant Presentation: Wendy Heder – 742 Nina Drive – She owns the home. She is asking the committee to rezone the home to Medium-Density Residential 1 (MDR1), so she can do short-term rentals, and she does not have to live in her home while it is being rented. Her husband passed away thirteen (13) years ago and left Wendy with just twenty-five, thousand dollars in retirement. She raised six (6) children and went back to school. Wendy finished a Bachelor’s degree and a Master’s degree and just last year, she went back to working full-time. She is working a second job, but because she is starting back to work later in life, at age fifty-five (55), she will not be able to pay off her home or build much retirement. A few weeks ago, she started renting a single bedroom with Airbnb and has had a wonderful experience. Wendy wanted to rent her entire home and applied for a license through the city to do so, while she lived in the home with her son. While she has followed all the rules of the business license, the safety concerns of the Building department, and the zoning rules of the Planning & Zoning department. Her renters were mostly parents of college-age students attending BYU-Idaho. The renters did not want to stay in the little apartments with no air- conditioning with their kids. The renters would come in after 10PM and leave early in the morning. They were very kind and respectful. Wendy has a daughter on a mission and a son, who will leave in September for his mission. She would prefer to not be a single lady, living in a house, sharing a bathroom with Airbnb guests. Wendy will live just five (5) minutes away. Every guest and host are rated through Airbnb. Wendy can choose which renters she will allow in her home. Now, the renters also have to show government ID. When Wendy’s daughter comes home for two (2) months, the two will return and live in the home. When the kids come home for Christmas, she will not rent the property. With approval of Wendy’s rezone, her guests will have their privacy and Wendy will have hers. Renting out the entire home provides more income, allowing her to pay off her home more quickly and start building her retirement. Wendy promises to do her best to keep her property beautiful, to take care of any concerns immediately, and choose her renters wisely. She read a letter from Shaley Summerfield – Address? – “I have been Wendy’s for the last four years. She has always kept her property beautiful, cared for, and been a wonderful neighbor. I believe that she is totally capable of continuing this level of care, even when renting the property out. I support Wendy 100% and believe that rezoning this property will only have a positive effect on the 3 | Page neighborhood and community by bringing in more revenue. She is available for any follow-up questions. Commissioner Questions: None Commissioner Lawrence opened the public input portion of the hearing at 6:58 PM. (2:15:00) He asked the Commissioners if they have had time to review the written correspondence. Todd responded he had taken the time. The rest of the Commissioners had not. Commissioner Lawrence asked Attorney Rammell how to proceed if the written correspondence had not been reviewed by the other Commissioners. Attorney Rammell suggested a short recess for the review. Commissioner Lawrence announced a ten-minute break for letter review at 6:49 PM. 6:57 PM- return from break with attendance Roll Call (2:25:05) Commissioner Roll Call: ROLL CALL of Planning and Zoning Commissioners: Present: Todd Marx (online), Randall Kempton, Aaron Richards, Jim Lawrence, Bruce Casper, Eric Erickson, Brad Wolfe, McKay Francis, Vanessa Johnson. Absent: Vince Haley (Vice Chair), Sally Smith (Chairperson). Commissioner Lawrence reviewed the public hearing procedures. Favor: Debra Jones – 22 S Hidden Valley Rd. – She does not live in the Ricks-Wade neighborhood. She is at the meeting as a character reference for Wendy. She knows Wendy very well. Deborah has been in her home on several occasions; she takes a lot of pride in her home – the home is clean and organized. Wendy will continue to keep things repaired and the yard looking nice. She reminded the group that in the winter, the renters would not be able to park on the street. Wendy mentioned she would be careful about the renters coming in; Deborah knows that this would be so. Deborah loves the part of Wendy’s testimony where she said she has followed all the rules. Deborah knows this about Wendy; Wendy will follow the rules and not bend them. Paula Morrison - 728 Lupine Circle – She lives in the neighborhood of the mobile home park, and frequests the neighborhood Wendy lives in. Paula is also a widow, and she knows making the most of your assets is very important. Wendy is looking ahead to see what she needs to do to provide for herself. By allowing Wendy to rezone to have this Airbnb, she will be able to take care of her family. People come and go in an Aribnb. She does not see a large impact to the neighborhood. Many people in the neighborhood have large families. Paula would appreciate the Commissioners giving Wendy this opportunity. McKenzie Bargar - 502 Mariah Ave #204 – She is a colleague of Wendy’s. Wendy is very organized and a good fit for the management the short-term rental would require. Wendy is prompt and shows up on time. McKenzie feels like it would be smart for this request to be approved. Ben Nelson - 376 Susan Dr. – He has known Wendy for about one (1) year. Ben runs a small business and does handyman work. Wendy is one of Ben’s clients. Wendy has had Ben do quite a bit of work around her home – things most people would not think of. Wendy is very detail-oriented and wants to make the home look really nice. He cannot imagine Wendy 4 | Page running an Airbnb that does not operate the same way. In addition to this, Wendy is a manager of an apartment complex. It is in Wendy’s being, to do things right and do them well. Wendy has gone through the proper channels. This is a woman that just wants to improve her life. He fully supports the approval of the rezone for this purpose. Nancy Rodrigues - 784 Barney Dairy Road – She seconds all that has been said. She commends Wendy for being proactive in this situation of her life. Nancy feels Wendy has come up with an excellent solution, not only for her family and herself, but for the community. Nancy knows others in the community who also Airbnb – there is always a need for it, especially when semesters end and begin with the college. The people she knows that have Airbnbs have had quiet and respectful guests. Nancy hopes the Commission will vote to allow Wendy to move forward in this manner. Evan Bargar - 502 Mariah Ave #204 – Evan lives in the apartment complex that Wendy manages. Ever since Wendy began working for the complex, the complex has had a huge turnaround. He has been very impressed with the way the complex is being cared for. Evan fully supports Wendy if the Commission decides to accept her proposal. Cindy Lemon - 241 S 3rd East – She supports Wendy, because a change from LDR2 to MDR1, when you are talking about 0.2 acres is very minimal. Cindy clarified the maximum allowed on the property in MDR1 would be two (2) units. The affect of the change on the community will be so minimal, Cindy is in support of this request. Neutral: None Opposed: Mike Glasscock - 191 Millhollow – He is opposed to this request because the request is a zone change. When an individual buys a piece of property, there is a zone attached to that property. You might as well not have any zoning laws because the zones just get changed. People, when they purchase their homes, make a lot of decisions based on the zoning. If a parcel’s zoning changes, you should have a good reason. In Mike’s opinion, the only reason to change zoning is for a reason that benefits the whole city. It does not matter if the person is a good person or a bad person, whether they take care of their property or not. Gary Forsgren - 629 Laleene – His concern is what happens if the property is sold. Gary bought his home as an investment. His home is his retirement. If the property value goes down, is Wendy going to subsidize Gary’s retirement? He agrees with Mike’s comments. There have been other rentals in the neighborhood – one was rented by seven (7) college students that were not respectful of neighbors, making a lot of noise at night. If this is the situation that could happen with approval of Wendy’s request, he is not in favor. Regan Muir - 710 Nina Drive – He would like identify a few points that could help Commissioners make their decision for the community as a whole. It has been mentioned a couple of times, that the applicant’s property is contiguous to adjacent property currently zoned MDR1. The MDR1 zoned property is a mobile home park. The subdivision in which Wendy’s home lies are residential, stick-built homes. In a mobile home park, the tenants rent the space from the people who own the park. Apples are not being compared to apples. Most of the reasoning for approval is to provide retirement for Ms. Heder to pay off her 5 | Page home. Regan did some research before he came tonight, reading some articles from the Economic Policy Institute. He could send the articles to the Commissioners. The articles state there are negative impacts for communities that allow short-term rentals. This request is not the only option for Wendy to bring in extra income – Airbnb is not the last resort. He suggested Neighbor.com, a storage option for students to store their things while they are off-track. Then, people would not have to live in Wendy’s house and the parcel would not have to be rezoned. Regan’s parents own an apartment complex in Idaho Falls; it is zoned appropriately to do Airbnbs out of one (1) unit. Even though the owner is rated high on Airbnb, there have been instances where renters have come in and damaged the property. Once this zoning is approved, what is stopping Wendy from building a second unit? Approval of this request would create a dangerous precedent and destroys the community feel. For these reasons, he hopes this request would be denied. Victor Harrison - 782 Nina Drive – He loves Wendy; the two are in the same ward. He is against the request because of Regan’s comments about setting a precedent. Wendy will probably do an awesome job running an Airbnb. Wendy does well in her endeavors. Wendy’s home is just one (1) in a neighborhood of ninety-six (96) homes. He claims others in the neighborhood feel the same way, but they did not want to come tonight, because they did not want to hurt Wendy’s feelings. He suggested Wendy sell her home and buy a property that is already properly zoned to do Airbnb as she would like. Victor said his home is also his retirement; he is close to paying off his home. The zone cannot be changed back at time of sale. Written Correspondence: (see the following) 6 | Page Written Response #1 – Kerensa Sorensen-Stowell – 772 Nina Drive 7 | Page Written Response #2 – Whelmar Greenland – 713 Laleene Drive 8 | Page Written Response #3 – Hannah Williams – 14 N Hidden Valley Rd Written Response #4 – Jeff & Kara Downs – 720 Nina Dr 9 | Page Written Response #5 – Julie Severn – 234 Randy Dr 10 | Page Written Response #6 – Sandra Cuttler – 274 Randy Dr 11 | Page Written Response #7 – Makayla Austin – 628 Lilac St 12 | Page Written Response #8 – Erica Mouser – 198 N Hill Rd Written Response #9 – Heather Luthy – Address? Written Response #10 – Madison Landon – 236 Susan Dr. 13 | Page Written Response #11 – Mary Gillespie – 506 Laurel St. Written Response #12 – Jessica Bruderer – 276 Susan Dr. Written Response #13 – Kristi Grigg – 752 Nina Dr. 14 | Page Written Response #14 – Gordon and Celia Maybee – 744 Lupine Cir. Written Response #15 – Sue Price – 723 Laleene Dr 15 | Page 16 | Page Written Response #16 – Danny and Heather Burrel – 231 Randy Dr 17 | Page Written Response #17 – Chriss Kuester – 653 Mill Stream St Written Response #18 – Mira Mangleson – 333 Susan Dr 18 | Page Written Response #19 – Anna Dixon – 656 Hillside Drive Written Response #20 – Mr. and Mrs. Yesenya Shipp – 742 Lupine Circle 19 | Page Written Response #21 – Doug Drake – 294 Max Drive Written Response #22 – Shaelee Reese (Sommerfeldt) – 602 Lilac Street 20 | Page Written Response #23 – Barbara Pawson – 736 Lupine Street Rebuttal: Wendy Heder – She has enjoyed this process, because she has had the opportunity to talk to many of her neighbors to get to know their opinions. It is interesting that some of these that are opposed have not come and talked to Wendy. One of the letters submitted is heavily based on long-term rentals. Long-term rentals and short-term rentals are difficult to compare; they are not the same. There are three (3) long-term rentals in the immediate area. She had a long-term renter and in one (1) year they caused twenty-five, thousand dollars of damage. Wendy was forced to fix the home, sell it, and lose money because of the situation. Long-term renting is no longer an option for her. The design of her home is not conducive for a duplex. If the request is not approved, she could rent two (2) rooms in her home and live in one (1) room. When her daughter was home before her mission, there were four (4) cars. Wendy has parking for four (4) cars on her property. If Wendy was to sell the property after the zoning was approved, she believes the home would have to be torn down and replaced to build a duplex. The normal person is not going to rezone their property to make a request of this type. It takes one thousand dollars to make a request for rezoning. The process takes two and one- half months. Inspectors have come to check many items in her home to make sure the property is safe for renting. Wendy had to hire the proper people to make GFCI changes to the outlets in the kitchen. This home is not her retirement. She does not want to sell her home. If Wendy sold her home, because it was her retirement money, where would she go? Wendy wants to live and be self-sufficient. She spoke to the situation of the seven (7) college students. These students were in a long- term rental. The owner of the home rented it to a single college student. Then, the student sublet the home to six (6) other people. Wendy does not believe the owner was aware of the situation. The owner of the home had moved out of state. Wendy is asking for a short-term rental. Wendy has looked into the zones. Medium-Density Residential 1 (MDR1) is all over the city. The MDR1 zone is not a zone just for mobile home parks. Short-term rentals do not decrease the value of the homes in the area, they increase the value. The reason is probably because those who do want to rent their homes take such good care of their property to attract clients. Wendy does not want to just be a host; she 21 | Page wants to be a super host. This means you must rent one hundred times and receive reviews over 4.8 every single time. Wendy is doing this to survive; she is not just doing this because she can. This is the only way she knows of making up the difference. She did not start building interest for retirement at twenty, thirty, or forty. Wendy already works all day and all night. She is trying to do the best she can with what she has. Please consider the written responses – seventeen have been turned in that are all positive. Thank you to the people who have come tonight to voice their support. Commissioner Lawrence closed the public input portion of the hearing at 7:29PM. Conflict of Interest? – Commissioner Lawrence 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: Brad Wolfe asked Alan if a Conditional Use Permit could be approved within the LDR2 zone for this type of short-term rental. Alan said no, not as the code is currently written. Brad said he has been listening to this hearing and his heart is different than his mind. He would love to help Wendy. The meeting tonight is about land use. Is the approval of this one parcel going to set a precedent? This needs to be considered when a commissioner makes his or her decision. He was on the City Council when a lot of discussion occurred on short-term rentals. The decision was made to only allow this type of rental in medium-density residential areas for all the reasons that have been spoken. Is this a place where the zone of MDR1 fits? Eric agrees. There are a couple of issues he has. He sees a distinction from the property to the south and the properties that face the streets, which are LDR2. The contiguity does not make a big difference. Eric’s concern is about “spot-zoning”. Attorney Rammell read the definitions of spot zoning: “The most widely accepted tests of validity, sometimes stated or applied in combinations, sometimes separately, are whether or not the ordinance is in accordance with a comprehensive plan of zoning . . . and whether or not it is reasonably designed to promote the general welfare, or other objectives specified in the enabling statutes, rather than merely to benefit individual property owners or to relieve them from the harshness of the general regulation as applied to their property.” 51 A.L.R.2d at 266. Dawson Enterprises, 98 Idaho at 514, P.2d at 1265 This request matches each of the criteria for a spot zone. Legally, if the application was approved, it would make the city vulnerable to legal action. Courts look at factual scenarios. Eric said the approval of the rezone would certainly be a benefit to the applicant – there is no question about that. One person would be allowed to do something that no one else in the neighborhood could do. He does not see a benefit to the neighborhood. The zoning request is not to change the zoning of the entire neighborhood. 22 | Page McKay, as a developer, would look at this situation from a different viewpoint. If he saw a neighborhood with medium-density zoning and a 0.2 acre lot, the density is not going to provide a return on investment for a single lot. A developer would try to pick up several properties next to one another and build a little taller. Does this possibility fit with these single-family homes? He would like to recruit Wendy to be in his neighborhood and his ward; she seems like a wonderful woman. He feels LDR2 is a good step-down zone from a medium-density use. The zoning will last much longer than the current use of that home. Aaron clarified duplexes are allowed in the LDR2 zone. Alan said duplexes are allowed with 10,000 sq ft. lots. Wendy’s property does not have the required square footage. Aaron asked Attorney Rammell if there is such thing as a conditional approval with a sunset clause on a zone change. Attorney Rammell answered technically, you can do it, but it is fraught with legal liability. Aaron said we are talking about a temporary problem with a permanent solution; he is looking for a bridge. Attorney Rammell asked Alan about the possibility of a Conditional Use Permit. Alan said the type of rental Wendy is requesting is not listed in the use table for the LDR2 zone. Brad is not sure if the short-term rental configuration in place is correct. Alan clarified short-term rentals are allowed in the LDR2 zone, but Wendy would have to live on the property. Attorney Rammell said the practical approach may be to make some changes in the Development Code for short-term rentals. Aaron would be supportive of changing the city’s Conditional Use Permit ordinance. In his mind, a Conditional Use Permit is solving a temporary problem with a temporary solution. Aaron Airbnbs his home; he loves the cottage industry. He loves the people they meet from all over the world. He loves that his daughter is the cleaner and this helps her earn money for college. He does not like putting a permanent situation on a temporary problem. There is still room to expand the home into the rear setback. This is a situation for a Conditional Use Permit. Randall feels the same way; he would vote against the application at this point. He would love to see a CUP, but this is above the judicial possibilities tonight. Vanessa also agrees with what has been said. Brad suggested Wendy talk to the city Staff about other possibilities. Aaron asked if the item could be tabled and the request be modified. Attorney Rammell said no, new public notice would be required. MOTION: Motion to recommend to City Council to deny (22-00520) the Rezone from Low-Density Residential 2 (LDR2) to Medium-Density Residential 1 (MDR1) at 742 Nina Drive, because it does not seem to fit in the area, for the reasons legal counsel read regarding spot zoning, and it does not make sense. Action: Deny, Moved by Brad Wolfe, Seconded by Todd Marx. Commissioner Discussion on the Motion: None VOTE: Motion carried by unanimous vote. (Summary: Yes = 9, No = 0). Yes: Todd Marx (online), Randall Kempton, Aaron Richards, Jim Lawrence, Bruce Casper, Eric Erickson, Brad Wolfe, McKay Francis, Vanessa Johnson. No: 7. September 7, 2022, Kyle Baldwin presented the application to City Council. 23 | Page 8. Planning & Zoning recommendation to deny a rezone for 742 Nina Dr from Low Density Residential 1 (LDR1) to Medium Density Residential 1 (MDR1) zone #22-00520 – Alan Parkinson City Planner Baldwin said the applicant is requesting the zone change to be able to short-term rental her home. The Planning and Zoning Commissioner’s recommended denial of the request because it is considered spot zoning. City Attorney Zollinger explained there is only a limited number of spot zones in the city. There is a dim view regarding spot zoning and one of them is when the request is for a singular purpose. Council Member Flora asked if city staff has received any major complaints regarding Airbnb’s and if the Police Department has received or acted against the operator of an Airbnb in the city. She questioned if citizens are registering their Airbnb’s. City Attorney Zollinger said since changing the city ordinance regarding Airbnb’s, the demand for Airbnb’s has either completely dropped or not very many of them have been registered because city staff has not received many complaints. Council Member Flora asked for the Airbnb ordinance to be reviewed to possibly lower the stipulation of having an Airbnb in particular zones. City Attorney Zollinger explained the ordinance can be revisited anytime; however, it should not be revisited on a case-by-case basis. The Planning and Zoning Commission’s recommendation is very sounding, they were not confused about the zone, it simply does not meet the current requirements. Council President Busby said he is opposed to spot zoning because it creates a problem when the property is sold. A developer would be able to build to the maximum that zone allows. Council Member Flora questioned how this rezone request made it to the Planning and Zoning Commissioners because spot zones are not favorable. Council President Busby moved to deny a rezone for 742 Nina Dr from Low Density Residential 1 (LDR1) to Medium Density Residential 1 (MDR1) zone; Discussion: City Attorney Zollinger said with the determination if an error was made by city staff the $1000 fee be reimbursed to the applicant; Council Member Walker seconded the motion; Mayor Merrill asked for a vote: Those voting aye Those voting nay Council Member Flora None Council Member Johnson Council Member Chambers Council Member Walker Council President Busby The motion carried. 9. September 14, 2022, At the recommendation of City Council, a refund was submitted.