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1 SONATA PARK Proposed Findings of Fact & Conclusions of Law for City Council’s Review and Adoption Prepared for September 30, 2009 PAZ KEY TO THE COLOR CODING: Findings in black font were adapted from the findings in the staff report; the voice and tense were changed to reflect Council’s action, and citations from the record have been added. Findings in maroon font were updated based on the Corrections to Staff Report memo, dated 12-03-07, which was handed out at Planning Board on 12-04-07 and referenced during the staff presentation (see the 12-04-07 Planning Board Minutes, page This memo was also attached as Attachment #6 to the PAZ Referral dated 12-07-07. Findings in green font were updated to reflect Council action (amendments to conditions). Findings in blue font have been added from the public record. CITY COUNCIL’S MOTIONS, AS APPROVED DECEMBER 17, 2007 1. THAT the property be zoned RLD-2 with a PUD Overlay, as amended by City Council and shown in Attachment A, based on the findings of fact and subject to the attached conditions of rezoning approval. 2. THAT the request to vary from Section 3-2(13)(A)(1) requiring cul-de-sac roads to be 1000 feet in length or less be approved to allow Beethoven Lane to be approximately 1,050 feet as shown on the plat, based on the attached findings of fact. 3. THAT the request to vary from Section 3-2(15)(A)(2) requiring a 5-foot wide boulevard sidewalk and a 7-foot wide landscaped boulevard on the opposite side of the off-site portions of Teddy Turn and Brahms Way be approved to permit Teddy Turn and Brahms Way to be constructed with boulevard sidewalk on one side of the road as proposed, based on the attached findings of fact. 4. THAT the Sonata Park Subdivision be approved for a two-year approval period, based on the attached findings of fact and subject to the attached conditions of approval. ---PAGE BREAK--- 2 CITY COUNCIL’S CONDITIONS OF SUBDIVISION APPROVAL, AS APPROVED DECEMBER 17, 2007 Roads, Driveways and Access 1. Except for approved short courts, all roads within this subdivision and Teddy Turn between this subdivision and Duncan Drive, shall be dedicated as public rights-of-way, subject to review and approval by Public Works prior to final plat approval. Subdivision Regulations 3-2 2. The SID/RSID waiver statement shall be amended to also include Brahms Way, subject to review and approval by Public Works prior to final plat approval. Subdivision Regulations 3-2 3. The plat shall be revised to include the private road statement shown in the Missoula City Subdivision Regulations Section 5-2(5)(C), to apply to the short courts. Subdivision Regulations 3-2 4. The plat shall be revised to show a 1’ No-Access Strip along all corner lots on the Teddy Turn frontage, subject to review and approval by Public Works prior to final plat approval. Subdivision Regulations 3-2 5. A road signage plan in conformance with the Manual on Uniform Traffic Control Devices, including provisions for temporary signage during construction, permanent signage including stop signs where appropriate, and cost of installation to be the responsibility of the subdivider, shall be reviewed and approved by City Engineering prior to final plat approval. The plan shall require the subdivider to install road signs on Teddy Turn in locations subject to review and approval by Public Works and City Parks and Recreation prior to final plat approval that state “Wildlife Crossing – Reduce Speed to 15 mph” located at the south and north ends of the draw which is located at approximately 19+00 and 20+00 on the Teddy Turn Road Plan and Profile. Subdivision Regulations 3-2(2)(F) Drainage 6. The drainage detention pond shall be constructed in a location approved by City Parks and Recreation prior to final plat approval so as to not conflict with the 20’ wide public pedestrian access easement and to ensure that no existing native trees or shrubs are removed from this area to accommodate construction and ongoing operation of the detention pond. Subdivision Regulations 3-4, 3-8 and 3-13 Pedestrian Facilities 7. A 20’ wide public pedestrian access easement shall be shown on the plat extending east/west from the City Park in Papoose Ranch II subdivision connecting to the City Open Space west of the property. The location of this easement shall be subject to review and approval by City Parks & Recreation prior to final plat approval. Subdivision Regulations 3-8 ---PAGE BREAK--- 3 8. The subdivider shall present evidence of petitioning into the Missoula Urban Transportation District, subject to review and approval by OPG prior to final plat approval. Subdivision Regulations 3-1(1)(J) Fire 9. Plans for addressing buildings so that address signs are clearly visible from the street in all lighting conditions shall be reviewed and approved by the Fire Department prior to building permit approval and shall be included in the covenants which may not be changed or deleted without governing body approval prior to final plat approval. Subdivision Regulations 3- 1(1)(B) and 3-2(2)(G) 10. A fire hydrant plan shall be reviewed and approved by the City Fire Department prior to building permit approval. Fire hydrants shall be installed prior to combustible construction as required by the City Fire Department approved hydrant plan. Subdivision Regulations 3-2(2)(G), 3-7 11. Preliminary driveway plans, including turnarounds / emergency vehicle turnouts for fire apparatus in all weather conditions and driveway widths and grades, shall be reviewed and approved by the City Fire Department prior to final plat approval. To ensure compliance with the approved preliminary driveway plan, the City Fire Department shall review and approve final driveway plans prior to building permit approval. Subdivision Regulations 3-7 12. The covenants shall be amended to require City Fire Department inspection and approval of compliance with the City WUI standards contained in Exhibit 6 of the City Subdivision Regulations prior to issuance of a Certificate of Occupancy. This provision of the covenants may not be changed or deleted without governing body approval, subject to review and approval by OPG prior to final plat approval. Subdivision Regulations 3-7 Public Health and Safety 13. The subdivider shall prepare and file a development agreement containing a plan for mitigation of post-development road dust emissions resulting from hillside road sanding, to be reviewed and approved by the Air Quality Division of the City/County Health Department and the City Attorney prior to final plat approval. Subdivision Regulations 3-1(1)(D) 14. A plan for street light installation at the intersection of Duncan Drive and Teddy Turn shall be reviewed and approved by City Engineering prior to final plat approval. Subdivision Regulations 3-2(2)(E) 15. Plans for road construction across the Yellowstone Pipe Line shall comply with Yellowstone Pipe Line Company (YPL) Encroachment Guidelines and shall be reviewed and approved by YPL prior to final plat approval. If required by YPL a signed and executed Encroachment Agreement shall be returned to the utility, and appropriate development provisions shall be included on the final plat and in the subdivision covenants, prior to final plat approval. Subdivision Regulations 3-1(2) 16. The subdivider shall prepare a geotechnical study for the site, and any site alterations shall conform to the recommendations contained in the geotechnical study, subject to review and approval by Public Works and OPG prior to final plat approval. Submittal of “as built” ---PAGE BREAK--- 4 record drawings shall be accompanied by an engineer’s certification that all work was completed in compliance with the geotechnical report. Any changes in soil conditions noted by the engineer shall be outlined in the certification with the engineered remedy employed to address the change. Subdivision Regulations 3-1(2 Common Area 17. A plan for common area, pedestrian easement and boulevard area improvements, including but not limited to, landscaping, a weed management plan, a trail plan, irrigation, maintenance and any proposed improvements guarantee shall be reviewed and approved by the Parks Department and Public Works prior to final plat approval. The subdivider shall install improvements to the common area(s), pedestrian easement and boulevard areas as detailed in the approved plan prior to final plat approval or be included in the improvements guarantee, subject to review and approval by the Parks Department and Public Works. Subdivision Regulations Sections 3-8(1)(F), 3-8(10) & 3-2(15)(E) 18. The subdivider shall file a development agreement that states the developer shall provide all maintenance of common area(s), pedestrian easements, and boulevard areas until enough development to support the homeowner’s association has taken place. The development agreement shall be filed prior to final plat approval, subject to review and approval by OPG and the City Attorney. Subdivision Regulations Sections 3-8(1)(F), 3-8(10) & 3-2(15)(E) No-Build Zones 19. Slopes over 25% designated as “No-Build Zones” on the plat shall be defined on the plat and in the covenants with an appropriate map exhibit as an attachment, as follows. This section of the covenants may not be changed or deleted without governing body approval “The ‘No-Build Zone’ shall include the prohibition of all buildings, structures, fences (except for wildlife friendly fencing), roads, motorized vehicle access (except for routine maintenance activities), parking, storage, or any other development. It shall also prohibit any mining, cutting, burning, or removal of live or dead vegetation (except if needed for wildfire prevention, noxious weed control or conservation management), filling with substances such as gravel, soil, slash or other debris, or the planting of non-native vegetation such as lawn grasses.” Subdivision Regulations 3-1(10) 20. A one hundred foot (100’) wide “No Build Zone” shall be shown on the plat along the western boundary adjacent to the City Open Space. The plat shall be revised to shift lots on the western side of the property to the east so that no lots are within the one-hundred foot wide “No Build Zone”. This “No Build Zone” shall be defined on the plat and in the covenants with an appropriate map exhibit as an attachment, as follows. This section of the covenants may not be changed or deleted without governing body approval “The ‘No-Build Zone’ shall include the prohibition of all buildings, structures, fences (except for wildlife friendly fencing), roads, motorized vehicle access (except for routine maintenance activities), parking, storage, or any other development. It shall also prohibit any mining, cutting, burning, or removal of live or dead vegetation (except if needed for wildfire prevention, noxious weed control or conservation management), filling with substances such as gravel, soil, slash or other debris, or the planting of non-native vegetation such as lawn grasses.” Subdivision Regulations 3-1(10) and 3-8 ---PAGE BREAK--- 5 Wildlife 21. Lots 35 – 38 shall be deleted from their current location as shown on the proposed plat and three lots may be recouped as shown on the plat dated December 14, 2007 (See Attachment Subdivision Regulations 3-1(10) and 3-13 22. The “Garbage” section (Section F) of the covenants shall be entitled “Nuisances, Trash and Garbage” and amended prior to final plat approval to add the following: Homeowners shall use 95-gallon polyurethane carts from Allied Waste to contain all garbage; no other types of garbage containers are allowed. The carts must be stored inside fully enclosed sheds or garages until the day of garbage pickup. The carts may be placed outside for pickup only between 7 a.m. and 7 p.m. on the day of Allied Waste pickup. When there are 25 residences in this subdivision, the effectiveness of this garbage plan to deter wildlife will be evaluated by Fish, Wildlife & Parks and the homeowners association. If FW&P recommends a different collection method, including but not limited to bear-resistant roll-off dumpsters located at the base of the subdivision with appropriate facilities, the Association shall be responsible for implementing such recommendations. The Association shall maintain the common area needed for the dumpsters and set up whatever process is necessary to centralize the billing for the garbage service, infrastructure, and related construction costs. Subdivision Regulations 3-1(10) 23. The covenants related to wildlife shall be amended with the following language subject to review and approval of OPG and Fish, Wildlife and Park, prior to final plat approval and may not be changed or deleted without governing body approval. a. Add the following to the Animals and Pets Article VIII.3.(G): Keeping pets kenneled or indoors also helps protect them from predatory wildlife. b. Substitute the following for Wildlife Article VIII.3.(P)(ii): Do not feed wildlife or offer supplements (such as salt blocks), attractants, food scraps or bait for deer, bear or other wildlife. Feeding wildlife results in unnatural concentrations of animals that could lead to overuse of vegetation and disease transmission. Such actions unnecessarily accustom wild animals to humans, which can be dangerous for both. It is against state law (MCA 87-3-130) to purposely or knowingly attract bears with supplemental food attractants (any food, garbage, or other attractant for game animals) or to provide supplemental feed attractants in a manner that results in “an artificial concentration of game animals that may potentially contribute to the transmission of disease or that constitutes a threat to public safety.” Also, homeowners must be aware that deer can attract mountain lions to the area. c. Substitute the following for Wildlife Article VIII.3.(P)(iv): Barbecue grills should be stored indoors, and permanent outdoor barbecue grills are discouraged. Keep all portions of the barbecues clean, because food spills and smells on and near the grill can attract bears and other wildlife. d. Substitute the following for Wildlife Article VIII.3.(P)(vi): Gardens and fruit trees and shrubs can attract wildlife such as deer and bears. Keep produce and fruit picked and off the ground, because ripe or rotting vegetable material can attract ---PAGE BREAK--- 6 wildlife such as bears, deer and skunk. To help keep wildlife such as deer out of gardens, fences should be 8 feet or taller. Netting over gardens can help deter birds from eating berries. All fencing must be approved by the DRC. e. Substitute the following for Wildlife Article VIII.3.(P)(vii): Birdseed is an attractant to bears, and bird feeders should not be used from April 1st through the end of November. If used, bird feeders must: a) be suspended a minimum of 15 feet above ground level, b) be at least 4 feet from any support poles or points, and c) should be designed with a catch plate located below the feeder and fixed such that it collects the seed knocked off the feeder by feeding birds. f. Insert the following between Wildlife Articles VIII.3.(P)(viii) and (ix): Outdoor compost piles can attract skunks and bears and should be avoided. If used they should be kept indoors or built to be wildlife-resistant. Compost piles should be limited to grass, leaves, and garden clippings, and piles should be turned regularly. Adding lime can reduce smells and help decomposition. Do not add food scraps. g. Add the following to the end of Wildlife Article VIII.3.(P)(ix) [now, Article Also see FWP’s web site at www.fwp.mt.gov. Subdivision Regulations 3-1(10) Riparian Resources 24. In accordance with Section 3-13 of the Missoula City Subdivision Regulations, the subdivider shall prepare a riparian management plan for the woody draws located in the southeastern portion of the property containing any of the habitat or community types listed in the Missoula City Subdivision Regulations, Appendix VI, and any appropriate buffer areas, to be reviewed and approved by OPG and City Parks and Recreation prior to final plat approval. The riparian management plan shall be included in the covenants. Subdivision Regulations 3-13 25. In accordance with Section 19.51.110 of the City Zoning Ordinance and Section 3-13 and Appendix VI of the City Subdivision Regulations, the plat shall be revised to designate the woody draws located in the southeastern portion of the property containing any of the following habitat or community types: 1) succulent hawthorn, 2) common chokecherry, 3) woods rose, and, 4) western snowberry, as riparian resource areas together with appropriate buffers, subject to review and approval by OPG and Parks and Recreation. These areas shall be labeled as “Area of Riparian Resource (No-Build / No Disturbance Zone – see covenants for more information)”. Subdivision Regulations 3-1(10) and 3-13 26. The riparian areas on this property designated as “No-Build / No Disturbance Zones” on the plat shall be defined on the plat and in the covenants with an appropriate map exhibit as an attachment, as follows: “The No-Build / No-Disturbance Zone shall include the prohibition of all buildings, structures, fences, utilities, parking, roads, motorized vehicle access (except for routine maintenance activities), storage, containment of domestic animals, or any other development. It shall also prohibit any mining, cutting, burning, or removal of live or dead vegetation (except as needed for wildfire prevention, noxious weed control or ---PAGE BREAK--- 7 conservation management), filling with substances such as gravel, soil, slash or other debris, or the planting of non-native vegetation such as lawn grasses.“ This section of the covenants may not be changed or deleted without governing body approval Subdivision Regulations 3-1(10) and 3-13(4) Weeds 27. The subdivider shall prepare a Revegetation Plan for disturbed areas in the subdivision requiring landowners to revegetate with beneficial species any areas of ground disturbance created by construction on or maintenance of these lots at the first appropriate opportunity after disturbance occurs. The Revegetation Plan shall specifically address noxious weed management in the Common Area and specify that the grass species included in the Revegetation Plan are not turf species, but are intended for reclamation purposes and are not suitable for areas proposed for maintained turf or lawn or roadsides. The Revegetation Plan shall be incorporated into the covenants and may not be changed or deleted without governing body approval and shall be subject to review and approval by the Missoula County Weed District prior to final plat approval. Subdivision Regulations 3-1(1)(B) 28. The covenants shall be amended to include a Weed Management Plan (Plan) for all undeveloped and planned open space areas of the subdivision, to be reviewed and approved by the County Weed District prior to final plat approval. The Plan shall include provisions making the developer responsible for its implementation until enough development has occurred to support the Homeowners’ Association. The Plan shall include a mechanism allowing the Homeowners’ Association to assume weed management duties from the developer. The Plan and the covenant provisions related to weed management shall be reviewed and approved by the County Weed District, City Parks and Recreation and OPG prior to final plat approval. Subdivision Regulations 3-1(1)(B) Covenants 29. The covenants shall be amended to include the SID / RSID waiver statements and the private road statement, which may not be changed or deleted without governing body approval, subject to review and approval by OPG prior to final plat approval. Subdivision Regulations 5-1(4)(J) 30. The covenants shall be amended to indicate that Teddy Turn and Beethoven Lane are planned for extension to serve future development, which may not be changed or deleted without governing body approval, subject to review and approval by OPG prior to final plat approval. Subdivision Regulations 5-1(4)(J) 31. The Radon section of the covenants shall be amended as recommended by the Health Department in their letter dated August 10, 2007, subject to review and approval by the Health Department prior to final plat approval. Subdivision Regulations 3-1(1)(D) 32. The Air Pollution Control section of the covenants shall be amended as recommended by the Health Department in their letter dated August 10, 2007, subject to review and approval by the Health Department prior to final plat approval. Subdivision Regulations 3-1(1)(D) ---PAGE BREAK--- 8 33. The covenants shall be amended to include the Health Department recommendation regarding Energy Efficiency that builders consider using energy efficient building techniques such as building orientation to the sun, appropriately sized eaves, wind breaks, super insulation techniques, day lighting, passive solar design, photovoltaic cells, and ground source heat pumps for heating/cooling, which may not be changed or deleted without governing body approval, subject to review and approval by OPG prior to final plat approval. Subdivision Regulations 3-1(1)(D) 34. The Amendment Section of the covenants shall be amended to include address signage, air pollution control, energy efficiency, SID’s / RSID’s, planned future extension of Teddy Turn and Beethoven Lane, riparian resource areas, and no-build zones as sections that may not be changed without prior written consent of the governing body, subject to review and approval by OPG prior to final plat approval. Subdivision Regulations 5-1(4)(J) REZONING REVIEW CRITERIA Findings of Fact: General Site Geography 1. The property, located in the Rattlesnake Valley west of Duncan Drive, is unzoned. (Submittal packet: page 1 project summary, page 1 application and various maps in section 2; City Zoning map) 2. Adjacent land uses include residential lots to the east and south, vacant land proposed as the Duncan Meadows subdivision to the north, and City Open Space to the west. (Submittal packet: page 2 application) 3. Adjacent lot sizes range from one-acre lots to larger lots of 2-½ acres, 3, 4 and 5 acres in size. Cleaves owns a 31-acre tract to the south, and Cooney owns a 65-acre tract to the north, proposed as Duncan Meadows subdivision. (Missoula County Geographic Information Systems) 4. To the west, Spurlock owns multiple 20-acre tracts. Sonata Park subdivision is separated from the Spurlock land by a 150 foot wide strip of City-owned Open Space. This Open Space makes up a large acreage north of the Cooney property (proposed Duncan Meadows), connecting to a 212-acre tract of City Open Space located southwest of the proposed Sonata Park subdivision. (Missoula County Geographic Information Systems) 5. The area west of Duncan Drive and east of the City Open Space is unzoned. Attempts to zone land in this area in 1995 failed due to successful statutory protests by residents in the area. (City Zoning map) 6. East of Duncan Drive is unzoned land and across Rattlesnake Creek is RLD-2 (Residential 2 du/ac) zoning, and the Spurlock property to the west is zoned C-RR2 (Residential 2 du/ac) in the County. Rattlesnake Creek and the City’s Open Space are zoned (P-1) Open Space. (City Zoning map) ---PAGE BREAK--- 9 History of the Proposal and Prior Zoning 7. In December 2006, OPG determined that an earlier version of this proposed subdivision (with 41 proposed lots) did not meet the criteria for issuance of a zoning compliance permit on these unzoned lands, per Section 19.70.010 D of the Missoula City Zoning Ordinance. The 38 residential units proposed by the subdivider also did not meet the test for zoning compliance on unzoned lands. Therefore, the subdivider requested zoning the property to enable compliance of the subdivision with Title 19, the Missoula City Zoning Ordinance, as is required by the Missoula City Subdivision Regulations Section 3-1(1)(B). 8. According to the December 2006 zoning compliance determination analysis for development on unzoned land, the 38-lot subdivision design complied with the prior County Zoning of C- RR2 (Residential, 2 du/ac); however, it did not comply with the growth policy land use recommendation nor was it compatible with 50% or more of the land uses or potential land uses within 300’ of the property. The proposal also failed to meet the test of compliance with conditions of a prior subdivision, since this land was not reviewed previously as a subdivision. 9. The subject property was annexed into the City of Missoula in 1989 and zoned with an interim zoning that mirrored the prior County zoning of CRR-2 (Residential, 2 dwelling units per acre). The interim zoning (Residential, 2 dwelling units per acre) was extended for a period of two and one-half years, at which point it expired and the land became unzoned. (City Council minutes 12-10-07, page 36) 10. In 1995 there was an attempt to zone the lands adjacent to and including the subject property the “Rattlesnake Valley Planned District Overlay Zone” per the Missoula City Zoning Ordinance Title 19, Chapter 19.98. This attempt to apply the Rattlesnake Valley Planned District Overlay Zone to the subject property and adjacent lands was successfully protested and the subject property remained unzoned. (Submittal packet: section 3, page 2, subdivision application; Planning Board minutes, page 4; City Council minutes 12-10-07, page 36) Zoning Districts 11. The applicant did not request rezoning to include the Rattlesnake Valley Planned District Overlay Zone (Missoula City Zoning Ordinance Title 19, Chapter 19.98). (Submittal packet: section 3, subdivision application, section 4, zoning application) 12. The applicant requested rezoning the subject property to RLD-2 (Residential 2 du/acre) which would permit 53 dwelling units on this property, however, the applicant proposed a subdivision with 38 dwelling units on 34.08 acres. (Submittal packet: section 3, subdivision application, section 4, zoning application) 13. OPG staff recommended conditional approval of rezoning the property to RLD-2 (Residential) with the condition that the rezoning also include a PUD Overlay that restricted the density to the number of units approved in the subdivision. The PUD Overlay was included in the staff report recommendation; was reviewed and approved by Planning Board; and was reviewed, approved and amended by City Council. (Staff report, Planning Board Attachment Planning Board Minutes, page 8; PAZ minutes, 12-05-07, page 5; City Council minutes, 12- 10-07, page 36) ---PAGE BREAK--- 10 14. City Council approved the zoning of the property to the RLD-2 (Residential) zoning district with a PUD Overlay that restricted the development to 37 dwelling units on the 34.08-acre property, with a resulting maximum density of 1.09 dwelling units per acre (City Council Minutes, 12-17-07, pages 5 & 15). 15. RLD-2 zoning would allow 68 dwelling units on this property (City Zoning Ordinance, page 24); however Article 3-14 of the City Subdivision Regulations requires density to be adjusted based on slope categories. As a result, the maximum number of dwelling units permitted on this property, if it were to be zoned RLD-2, is 53 dwelling units. With the City Council-approved PUD Overlay, the maximum number of dwelling units permitted on this property is 37 (City Council Minutes, 12-17-07, pages 5 & 15). 16. The RLD-2 (Residential) zoning district allows lot sizes to vary from the minimum requirement of 20,000 square feet and the minimum lot width of 100 feet during subdivision review for the purpose of protecting natural resources, conserving open space and enhancing environmental amenities, and allowing for flexibility in site planning and project design. The RLD-2 zoning district requires that these variations may not increase the density on the 34.08-acre parent parcel (City Zoning Ordinance, page 24). The City Council-approved PUD Overlay restricts the density on this property to significantly less than the 53 dwelling units permitted by the RLD-2 Zoning District standards (City Council Minutes, 12-17-07, pages 5 & 15). 17. The RLD-2 (Residential) space and bulk requirements require front and rear yard setbacks of 25’ and a side yard setback of 15’ for primary residential structures. Maximum building height is 30’ (City Zoning Ordinance, page 24). 18. The PUD Overlay approved by City Council required a maximum building height of 30’, except for Lots 9, 10, 12, 18, 19, 20, 26, 27, 28, 29 and 30 (as shown on the revised plat/concept, dated 12-14-07, provided as Attachment which are restricted to a maximum building height of 26’ (Email to City Council members, 12-17-07, referenced in City Council Minutes, 12-17-07, page 8; City Council Minutes, 12-17-07, pages 5, 9, & 15). 19. The PUD Overlay approved by City Council also required minimum setbacks to be as outlined in RLD-2 (Residential) except that lots less than 10,000 square feet may be subject to RLD-4 (Residential) setbacks. The setbacks required by RLD-4 are a 20’ front yard, 20’ rear yard, and a side yard of 7.5’ and not less than 1/3 the building height. The RLD-4 setbacks are less restrictive than that required for the RLD-2 district, however, per the revised plat/concept dated December 14, 2007 and approved by City Council, there are no lots less than 10,000 square feet, so the RLD-4 setback standards would not apply to any lots within the subdivision (Email sent City Council members, 12-17-07, referenced in City Council Minutes, 12-17-07, page 8; City Council Minutes, 12-17-07, pages 5, 9, & 15). 20. The PUD Overlay approved by City Council also restricted building coverage (including all primary and accessory buildings on the lot) to a maximum of 40% of the lot area (Email sent City Council members, 12-17-07, referenced in City Council Minutes, 12-17-07, page 8; City Council Minutes, 12-17-07, pages 5, 9, & 15). 21. The PUD Overlay approved by City Council greatly reduces the intensity and impact of the ---PAGE BREAK--- 11 development from what is permitted in RLD-2 as follows: a. Density is restricted to nearly half of what is permitted in RLD-2, b. Building height is reduced to 26 feet for 11 lots in the subdivision, and c. Lot coverage is restricted to 40% of the lot area where no lot coverage restrictions exist with RLD-2. (City Council Minutes, 12-17-07, pages 5, 9, & 15; Email sent City Council members, 12-17- 07, referenced in City Council Minutes, 12-17-07, page 8) Comprehensive Plan Compliance 22. The 2005 Missoula Growth Policy Update, as amended by the 1995 Rattlesnake Valley Comprehensive Plan Amendment and the 1998 Missoula Urban Area Comprehensive Plan Update, are the applicable plans for the subject property (Subdivision application, page 8, included in Section 3 of the application packet; City Council Minutes, 12-10-07, page 36). 23. The property is inside the Primary Urban Growth Area and the Wastewater Facilities Service Area. The site is located approximately at the mid-point between the Upper and Lower Rattlesnake areas (Wastewater Line Map and Comprehensive Plan Exhibit, included in Section 2 of the application packet). 24. The 2005 Missoula County Growth Policy Update (page 4-5) states that the Urban Growth Area establishes “the physical area surrounding the community where growth is encouraged and beyond which growth is limited or discouraged.” 25. On July 24, 2006, the City of Missoula passed Resolution No. 7119 expanding the Wastewater Facility Service Area to include this property (City Council Minutes, 12-10-07, page 36). 26. According to findings in Resolution No. 7119, the recommended Wastewater Facilities Service Area is designated to encourage infill growth within an existing urban area (PAZ Minutes, 12-05-07, page 27. Resolution No. 7119 also states that Missoula “City/County, by an oversight during the 1999 Wastewater Facility Plan Update,” left out some portions of the remaining 592 acres from the Wastewater Facility Service Area Boundary as intended under a March 20, 1989 sewer service agreement. Resolution No. 7119 further states that “the City of Missoula desires to include any remaining portions of those properties subject to the March 20, 1989 sewer service agreement” which includes the subject property. (Resolution No. 7119, page 2 – 5) 28. The 2005 Missoula County Growth Policy (page 3-4) includes the following goals and objectives: a. Encourage and support new land development within or immediately adjacent to areas where public services are currently available both to maximize local government efficiency and to promote a logical growth pattern. b. Encourage development at appropriate densities within the urban growth area. c. Encourage a residential land use pattern which provides a high quality living environment in a variety of residential settings, protects public health and safety, minimizes local government service costs, and preserves natural resources. ---PAGE BREAK--- 12 d. Encourage the design of low density development within or adjacent to the urban growth area in such a way as to accommodate potential re-subdivision and infill. (City Council Minutes, 12-03-07, page 6, referenced in the City Council Minutes, 12- 10-07, page 36.) 29. The 1998 Missoula Urban Comprehensive Plan Update (page 81), the most recent comprehensive plan for this area, includes the following guidelines for interpreting the map of residential land use designations: a. Comprehensive Plan map land use designation densities are intended to be general, and to represent a range and a general sort of development pattern which can be anticipated. b. Density should be tied to urban services, particularly sewer and public transportation. c. Actual site characteristics should also be considered when evaluating a proposed development. d. Areas adjacent to the growth area with no community sewer are recommended for suburban residential development at a maximum density of 2 units per acre. Where sewer and other services are available, and there are no environmental constraints, greater density may be appropriate. (City Council Minutes, 12-03-07, pages 5-6, referenced in the City Council Minutes, 12-10-07, page 36.) 30. The 1998 Missoula Urban Comprehensive Plan Update (page 80) also provides the following guidance in regards to residential development on the urban fringe: “While low density development in the fringe areas has been a natural part of the urban land use pattern, it should be reexamined in the light of recent pressures of new development and the resulting increases in the cost of providing essential urban services.” (City Council Minutes, 12-10-07, page 36.) 31. The 1998 Missoula Urban Comprehensive Plan Update and the 2005 Growth Policy state that the map densities are general and increased density may be appropriate if urban services become available, particularly public sewer and public transportation (1998 Missoula Urban Comprehensive Plan Update, page 81; 2005 Growth Policy, page 3-4; City Council Minutes, 12-03-07, pages 5-6, referenced in the City Council Minutes, 12-10-07, page 36). 32. The land use designation for the 1995 Rattlesnake Valley Comprehensive Plan Amendment (Map #13: Rattlesnake Valley Planning Area, Land Use) is “Residential” for the subject property, with a recommended density of one dwelling unit per two acres on approximately 14.6 acres located generally in the central portion of the property and one dwelling unit per five to ten (10) acres on approximately 19.5 acres on the east and west sides of the property. 33. Resulting density from the 1995 Rattlesnake Valley Comprehensive Plan land use designation, based on a proportional average of the land use designation acreages, is one dwelling unit per three acres. 34. The land use designation for the 1995 Rattlesnake Valley Comprehensive Plan Amendment was made before the area was annexed into the waste water treatment facilities area and was included within the urban growth area boundary (PAZ Minutes, 12-05-07, page ---PAGE BREAK--- 13 35. In July 2006, City Council approved a resolution to expand the wastewater treatment facilities area to include these areas west of Duncan Drive (City Council Minutes, 12-10-07, page 36). 36. The 1995 Rattlesnake Valley Comprehensive Plan Amendment (pages 18-20) includes the following goals and objectives: a. Encourage the highest density of residential development in the southern portions of the Rattlesnake Valley and gradually lower density of development to the northern portions of the Valley (page 19). b. Cluster developments to protect environmentally sensitive lands (page 19; City Council Minutes, 12-10-07, page 36). c. Protect natural resources such as wildlife corridors and habitat (page 19; City Council Minutes, 12-10-07, page 36). d. Preserve the maximum amount of open space (page 19; City Council Minutes, 12- 10-07, page 36). e. Provide development incentives within the area served by sewer (page 19; City Council Minutes, 12-10-07, page 36). f. Reduce groundwater pollution and pollution of Rattlesnake Creek by limiting development and roadways adjacent to the creek, and by expanding sewer service into the priority portions of the Rattlesnake Valley (page 18). g. Preserve the scenic views of Waterworks Hill, the hills occurring at the northwest corner and along the northern boundaries of the planning area, Mount Jumbo, and the slopes north of Mount Jumbo by encouraging clustered homesites, conservation easements, and other land preservation techniques (page 18). h. Design new land use development to be compatible with and enhance the characteristics of the different neighborhoods in the Rattlesnake Valley (page 20). i. Preserve and enhance the health, safety, and welfare of Missoula and Rattlesnake Valley residents by creating a sound basis for growth which preserves the amenities of the Rattlesnake, including but not limited to, critical open space and water quality and which limits increases in air pollution (page 20). j. Provide connections between neighborhood parks, open space, churches, commercial areas, and schools (page 19). 37. Recommended Policies and Actions included in the 1995 Rattlesnake Valley Comprehensive Plan Amendment include: a. Establish and apply residential zoning districts which recognize the urban, suburban, semirural, and, in some cases, rural character of the lands which have recently been annexed into the City of Missoula. With sound site planning and municipal services planning, the Rattlesnake Valley can support additional incremental development. This development should be at a scale which is compatible with the development patterns of existing Rattlesnake neighborhoods and the natural ecosystem which underlies and surrounds the entire study area (page 26). b. Development should take into account the capacity of the existing road network. The Plan does not envision the construction of new arterial roads for the purpose of expanding capacity (page 25). 38. City Council considered the 1995 Rattlesnake Valley Comprehensive Plan Amendment, which recommended land use designations and densities for the property, and testimony ---PAGE BREAK--- 14 from members of the public who felt that the density permitted by the RLD-2 Zoning District was too high (Planning Board Minutes, 12-04-07, page 18 and 20; City Council Minutes, 12- 10-07, pages 45, 46, and 53). 39. City Council also considered the express preference of the subdivider, as required by MCA 76-3-608(5)(b) and Subdivision Regulations Article 4-1(12), the property’s incorporation into the UGA boundary and the expanded waste water treatment area boundary in 1996, and the goals and objectives of the applicable comprehensive plans, and determined that the approximately 1 dwelling unit per acre density was appropriate in this location (City Council Minutes, 12-17-07, pages 5 & 15). 40. City Council approved the zoning of the property to the RLD-2 (Residential) zoning district with a PUD Overlay that restricted the density to a maximum of 37 lots / dwellings on the 34.08-acre property, which is approximately 1.09 dwelling units per acre (City Council Minutes, 12-17-07, pages 5 & 15). Infrastructure & Services Available 41. The City Engineer did not note any impacts resulting from the rezoning request, addressing Public Works’ review comments mainly to the subdivision proposal. 42. Mountain Line does not have a bus route serving this portion of the Rattlesnake Valley; however, General Manager Stephen Earle recommended that the subdivider submit an application to petition this property into the Missoula Urban Transportation District. 43. According to the 2008 Transportation Plan Update data, Greenough / Duncan Drive is classified as a 2-lane collector street from its origination point near the interstate up to approximately Mountain View south of this subdivision. A 2-lane rural collector street is designed to accommodate approximately 6,000 vehicles a day at a Level of Service Most recent traffic counts put Duncan Drive for its entire length below capacity. The 2006 traffic count at Station No. 241, located 200’ north of Lolo Street, was 1,750 AADT (Average Annual Daily Trips), and the 2006 traffic count at Station No. 234, located on Greenough Drive just north of Peggio Drive in Rattlesnake Hills Estates was 1,570 AADT. 44. The subdivision design approved by City Council meets road design standards, including improvements to Teddy Turn, an existing road; one variance was approved to non- motorized facility designs on Teddy Turn (City Council Minutes, 12-17-07, page 16), and one variance was approved to maximum cul-de-sac length standards on Beethoven Lane (City Council Minutes, 12-17-07, pages 16-17). 45. The property is located within the Air Stagnation Zone. 46. Roads on slopes need considerably more sanding materials applied during winter months to maintain safe driving conditions. A 1997 Study found a significant difference between the amount of material on sloped streets versus flat ones. The City-County Health Department recommended the Air Pollution Control section of the covenants be amended in order to mitigate air quality concerns. The Health Department recommendations were approved by City Council (Subdivision Regulations 3-1(1)(D). ---PAGE BREAK--- 15 47. The property is served by City sewer and a public water system. 48. All utilities will be provided to this site – including garbage service, natural gas, electric, telephone and cable television. All new utility service lines will be placed underground. City Council imposed a condition requiring a street light to be installed at the Duncan Drive / Teddy Turn intersection. 49. The site is located within an established service area for Missoula hospitals and the City Fire and Police Departments. 50. The Missoula Police Department evaluated the proposed subdivision and provided recommendations regarding access control, surveillance, territorial reinforcement, and target hardening. 51. In conformance with the Uniform Fire Code and Subdivision Regulations, the subdivision will be served by pressurized fire hydrants. City Council imposed a condition of approval requiring the fire hydrant plan to be reviewed and approved by the City Fire Department, and requiring fire hydrants to be installed prior to combustible construction as required by the City Fire Department approved hydrant plan (Subdivision Application page 17; City Council Minutes, 12-17-07, page 23; Subdivision Regulations 3-2(2)(G) & 3-7). 52. The City Fire Department stated that cul-de-sacs, and particularly the length of Beethoven Lane, pose a potential response time issue. 53. Beethoven Lane exceeds the maximum allowed length of 1000 feet by 50 feet and is ultimately planned to connect to roads within the proposed Duncan Meadows subdivision, making a complete looped road serving these two subdivisions, resulting in no cul-de-sac exceeding maximum length allowances. 54. The City Fire Department encourages connection of the roads within this subdivision to roads proposed in Duncan Meadows to reduce or eliminate the number of cul-de-sacs to improve emergency response. 55. The Beethoven Lane and Teddy Turn cul-de-sacs shall connect to future roads proposed for the Duncan Meadows subdivision to create a loop road to serve both subdivisions (PAZ Minutes, 12-12-07, page 56. Jason Diehl, Assistant Chief, City Fire Department clarified that the concern originally expressed by the Fire Department over the length of the Beethoven Lane cul-de-sac was in relation to general cul-de-sac development, and that the Fire Department would prefer connectivity of a traditional grid-type pattern, which improves response times. Mr. Diehl stated that the Fire Department had no concern with approving the length of cul-de-sac variance for Beethoven Lane since this is a temporary cul-de-sac that will eventually be replaced by a loop road connection when the property to the north is developed (PAZ Minutes, 12-14-07, page 57. City Fire Chief Tom Steenberg noted that the property was within their response time goals, and that he had no qualms about providing protection to the homes (PAZ Video, 12- 12-07, from minute 11:00 to minute 17:00 on the tape). ---PAGE BREAK--- 16 58. City Council considered public safety concerns relating to the length of the cul-de-sac and determined that since the cul-de-sac exceeded the standard by only 50’, and since the cul- de-sac was planned to connect as a loop road in the planned Duncan Meadows subdivision, the public safety concern was adequately mitigated (City Council Minutes, 12-17-07, pages 16-17). 59. Except for the City Fire Department’s concern about the length of the Beethoven Lane cul- de-sac, none of the reviewing agencies expressed concern about providing service to the site. Public Health & Safety 60. City Fire Chief Tom Steenberg commented that when the Fire Department reviews subdivisions, they look at slopes, response time, fuels, and safety. Mr. Steenberg added that he had no qualms about providing protection to homes in this subdivision (PAZ Minutes, 12-12-07, page 2; PAZ Video, 12-12-07, from minute 11:00 to minute 17:00 on the tape). 61. The property is within a Wildland / Urban Interface (WUI) and WUI standards are included within the covenants. 62. Members of the public expressed concerns about fire safety in the area, in particular the light, flashy fuels found in the grasslands on the site and in the adjacent area (PAZ Minutes, 12-05-07, page 6; City Council Minutes, 12-10-07, pages 50-51). 63. City Fire Chief Tom Steenberg expressed confidence that any fires in the area could be successfully fought. Mr. Steenberg noted that there will be adequate water supply at the site and that he has no qualms about providing protection to homes. Mr. Steenberg also noted that the Fire Department’s assessment of fuels was that a fire would burn only to the edge of the lawn (PAZ Minutes, 12-12-07, page 2; PAZ Video, 12-12-07, from minute 11:00 to minute 17:00 on the tape). 64. Jason Diehl, Assistant Fire Chief, City Fire Department, supported the Fire Department’s ability to influence and have input into areas being developed in Wildfire / Urban Interface areas of the City (PAZ Minutes, 12-14-07, page 65. City Council weighed the fire safety concerns and determined that purported potential hazards related to light, flashy fuels and the location of the site within a Wildland / Urban Interface could be adequately mitigated by the provision of adequate water supply in the form of a pressurized hydrant system and by imposing a condition of approval requiring the covenants to be amended to require City Fire Department inspection and approval of compliance with City WUI standards (PAZ Minutes, 12-14-07, pages 4-5). 66. The property contains a 40’-wide utility easement for Yellowstone Pipe Line Company (YPL). The 10-inch products pipeline runs east-west through the property. 67. Encroachment guidelines provided by Yellowstone Pipe Line Company (YPL) require a minimum setback of 50’ from the pipeline for all permanent structures (YPL agency comment letter, dated 10-23-06, Guideline #4 on page 3, included in Attachment A of the ---PAGE BREAK--- 17 staff report). Most of the area within 50’ of the pipeline is designated as common area. The only lotted area within 50’ of the pipeline is on the southern portion of Lot 30; this area has been designated as a No-Build Zone (Revised plat / concept, dated 12-14-07, provided as Attachment 68. Members of the public expressed concern that the potential of pipeline explosion created a public health and safety risk (City Council Minutes, 12-10-07, page 46 & 48). 69. Nick Kaufman, the applicant’s representative with WGM Group, Inc., noted that the risk of pipeline explosion was so low that it was not even on the actuary tables for insurance companies, so insurance companies don’t assess a risk or charge a higher rate for properties adjacent to high-pressure gas lines (PAZ Minutes, 12-12-07, page 2; PAZ Video, 12-12-07, at minute 18:45 on the tape). 70. City Council weighed the evidence of the purported hazard related to purported potential pipeline explosion and determined that following the Yellowstone Pipe Line Company (YPL) encroachment guidelines was sufficient to mitigate this potential public health and safety hazard since there was an extremely remote chance of a pipeline explosion as a result of this subdivision (Subdivision Regulations 71. Geologist W. I. Van der Poel expressed concern that the site lies in an area containing landslide deposits from a large Quaternary landslide, and that old landslides are well known for having the potential to be reactivated, and that development of this site could trigger a reactivation and threaten the integrity of the gas pipeline. Mr. Van der Poel indicated that this slide was relatively in place, in excess of 10,000 years (Letter dated November 29, 2007, included in Attachment C of the staff report, which is provided as Attachment #4 of the PAZ Referrals dated November 29 and December 7, 2007; PAZ Minutes, 12-12-07, page 72. Bill Weikel, civil engineer for WGM Group, Inc. (the applicant’s representative) investigated the landslide in geologic reports, field visits, and aerial photography analysis, and testified that the majority of the slide had likely occurred during the time of Glacial Lake Missoula, and concluded that there is nothing that would take place during development of the site that could come anywhere near recreating the effect of Glacial Lake Missoula, so therefore he did not feel that there is potential for landslides in this planned development (Letter dated December 4, 2007, included as Attachment #6 of the PAZ Referral dated December 7, 2007). 73. None of the reviewing agencies or applicable planning documents identified the landslide as an issue (City Council Minutes, 12-10-07, page 39). 74. City Council weighed the evidence of the purported hazard relating to the Quaternary landslide, including that no landslide activity had apparently occurred as a result of other construction/development in the immediate area, and determined that the evidence presented by Mr. Weikel was more credible, and since there was an extremely remote chance of landslide activity as a result of this subdivision that any purported hazards related to any purported potential landslide could be mitigated by conducting a geo-technical study and following the recommendations when developing the property. City Council imposed a condition of approval requiring the subdivider to prepare a geotechnical study for the site, ---PAGE BREAK--- 18 with any site alterations to conform to the recommendations contained in the geotechnical study (PAZ Minutes, 12-12-07, page 75. Geologist W. I. Van der Poel also noted that the site is underlain by the fault zone of the Clark Fork Fault (Letter dated November 29, 2007, included in Attachment C of the staff report, which is provided as Attachment #4 of the PAZ Referrals dated November 29 and December 7, 2009; City Council Minutes). 76. The 1995 Rattlesnake Valley Comprehensive Plan Amendment Update includes Map Geology for the Rattlesnake Valley Planning Area. The Geology map does not show a fault line through the subject property, however, a fault line is indicated crossing the property to the north of the subject property. (1995 Rattlesnake Valley Comprehensive Plan Amendment Update, Map 77. Bill Weikel, civil engineer for WGM Group, Inc. (the applicant’s representative) commented that he did not believe that the fault was likely to reactivate since the most recent movement in the fault took place approximately 35 million years ago (Letter dated December 4, 2007, included as Attachment #6 of the PAZ Referral dated December 7, 2007). 78. None of the reviewing agencies or applicable planning documents identified the Clark Fork Fault line as an issue (City Council Minutes, 12-10-07, page 39). 79. City Council weighed the evidence of the purported hazard relating to the Clark Fork Fault line, including the lack of activity on the fault line for the past 35 million years, and determined that the evidence presented by Mr. Weikel was more credible, and since there was an extremely remote chance of new activity on the fault line as a result of this subdivision, that the presence of the inactive fault line did not present a hazard to development of the subject property. However, in order to address and mitigate any purported potential soil instability concerns, City Council imposed a condition of approval requiring the subdivider to prepare a geotechnical study for the site, with any site alterations to conform to the recommendations contained in the geotechnical study (PAZ Minutes, 12-12-07, page 80. The property contains slopes over 10% and is therefore subject to the Hillside Design Standards in Section 3-14 of the Missoula City Subdivision Regulations. Approximately one acre of the property is on slopes 25% or greater, and these have been designated as “No-Build” Zones on the plat, except for gravel stock piles which are to be removed from the site. 81. For unzoned land, Subdivision Regulations Article 3-14(2) requires adjusting density downward based on the land use designations in the comprehensive plan, which are one dwelling unit per two acres (15.37 acres) and one dwelling unit per five to ten acres (18.71 acres). 82. The number of units permitted in the one dwelling unit per two acres is six and the number of units permitted in the one dwelling unit per five to ten acres is 1 (using ten acres) or 2 (using five acres). Since the applicant is requesting rezoning, these calculations are not applicable to this proposal but do provide a basis for calculating density for the land as unzoned based on the land use designations and the hillside design standards. ---PAGE BREAK--- 19 Resource Protection 83. The property contains riparian resources areas, which are subject to the City’s Riparian Regulations (Chapter 19.51 of the City Zoning Ordinance and Section 3-13 of the City Subdivision Regulations). These areas exist within the common area. The City Riparian Zoning District also applies to the riparian areas on this property. 84. The definition of Area of Riparian Resource (Subdivision Regulations Article 3-13) includes “woody draws . . . and land containing any of the habitat or community types listed in Section 19.51.110,” which lists Non-Willow Shrub Types to include 1) succulent hawthorn, 2) common chokecherry, 3) woods rose, and 4) western snowberry. These species, plus ponderosa pine and Rocky Mountain juniper, are present on the subject property. 85. Both the zoning and subdivision regulations prohibit development within Areas of Riparian Resource, which includes an adjacent buffer area “where development may have a negative impact on wildlife habitat.” (City Zoning Ordinance Section 19.51.030 and Subdivision Regulations Article 3-13.) 86. City Council required all riparian areas on the site to be protected as No-Build / No-Alteration Zones, including a riparian area located on the southeast corner of the site that the subdivider had designated for residential lots (PAZ Minutes, 12-12-07, page 87. The primary woody draw running east – west is within the proposed common area and varies in width from 150 to 450 feet. This area is proposed to remain undisturbed to facilitate wildlife movement through the area. (Submittal packet: page 4 Project Summary, Section 9 Riparian Resource Investigation) 88. The City Parks and Recreation Department supported the proposed width of the central ravine common area, as it could still function as a wildlife corridor from the North Hills open space to Rattlesnake Creek, within this subdivision. (City Parks & Recreation Department agency comment letter, dated 08-23-07, page 1, included in the application packet.) 89. City Parks & Recreation Department commented that the applicant’s designation of the central draw as common area in lieu of dedication of a public park is acceptable and actually preferable since there is already a substantial amount of City Open Space to the north, west and south. (City Parks & Recreation Department agency comment letter, dated 08-23-07, page 2, included in the application packet.) The designated common area was approved by City Council. (Subdivision Regulations Sections 3-8(1)(F), 3-8(10) & 3-2(15)(E)) 90. Montana Fish, Wildlife and Parks stated that, “While there is considerable use of the site by white-tailed deer, we would not expect any significant impacts on that population, given the fact that the deer are already an urbanized feature of the Rattlesnake Valley.” (Montana Fish, Wildlife, & Parks agency comment letter, dated 01-26-07, page 1, included in Attachment A of the staff report.) 91. The site lays at the southeastern-most edge of elk winter range, and Montana Fish, Wildlife and Parks does not expect the subdivision to cause problems for elk, because most of the elk use is to the north and west, and upslope, of the proposed development (Montana Fish, ---PAGE BREAK--- 20 Wildlife, & Parks agency comment letter, dated 01-26-07, page 1, included in Attachment A of the staff report). 92. Black bears and mountain lions are known to pass through the site and will probably continue to do so. Each year, FWP responds to problems in the Rattlesnake area related to improper storage of attractants (garbage, pet and/or livestock feed); unpicked, ripened fruit on trees; people purposefully feeding wildlife; and bird feeders. The potential presence of such attractants to bears and lions will greatly influence the risk of such encounters with humans living there, and City Council imposed a condition of approval requiring additional covenant language to mitigate this concern (Montana Fish, Wildlife, & Parks agency comment letter, dated 01-26-07, pages 1-2, included in Attachment A of the staff report; PAZ Minutes, 12-14-07, page Conclusions of Law: 1. Whether the zoning is compatible with the Comprehensive Plan 1. As proposed, the rezoning request does not substantially comply with the land use designation recommended in the Comprehensive Plan/Growth Policy regarding residential density. 2. City Council considered the 1995 Rattlesnake Valley Comprehensive Plan Amendment, which recommended land use designations and densities for the property, and testimony from members of the public who felt that the density permitted by the RLD-2 Zoning District was too high (Planning Board Minutes, 12-04-07, page 18 and 20; City Council Minutes, 12- 10-07, pages 45, 46, and 53). 3. City Council also considered the express preference of the subdivider for mitigation, as required by MCA 76-3-608(5)(b) and Subdivision Regulations Article 4-1(12), the property’s incorporation into the UGA boundary and the expanded waste water treatment area boundary in 1996, and the goals and objectives of the applicable comprehensive plans, and determined that the approximately 1 dwelling unit per acre density was appropriate in this location (City Council Minutes, 12-17-07, pages 5 & 15). 4. City Council determined that the approximately 1 dwelling unit per acre density substantially complies with the goals and objectives of the 2005 Missoula County Growth Policy and its applicable amendments, the 1995 Rattlesnake Valley Comprehensive Plan Amendment and the 1998 Missoula Urban Area Comprehensive Plan. 5. City Council determined that the subdivision complies with the following goals and objectives of the 2005 Missoula County Growth Policy (page 3-4): a. Encourage and support new land development within or immediately adjacent to areas where public services are currently available both to maximize local government efficiency and to promote a logical growth pattern. b. Encourage development at appropriate densities within the urban growth area. c. Encourage a residential land use pattern which provides a high quality living environment in a variety of residential settings, protects public health and safety, minimizes local government service costs, and preserves natural resources. d. Encourage the design of low density development within or adjacent to the urban growth area in such a way as to accommodate potential re-subdivision and infill. (City Council Minutes, 12-03-07, page 6, referenced in the City Council Minutes, 12- 10-07, page 36.) 6. City Council determined that the subdivision complies with the following goals and objectives of the 1998 Missoula Urban Comprehensive Plan Update (page 81): ---PAGE BREAK--- 21 a. Comprehensive Plan map land use designation densities are intended to be general, and to represent a range and a general sort of development pattern which can be anticipated. b. Density should be tied to urban services, particularly sewer and public transportation. c. Actual site characteristics should also be considered when evaluating a proposed development. d. Areas adjacent to the growth area with no community sewer are recommended for suburban residential development at a maximum density of 2 units per acre. Where sewer and other services are available, and there are no environmental constraints, greater density may be appropriate. (City Council Minutes, 12-03-07, pages 5-6, referenced in the City Council Minutes, 12-10-07, page 36.) 7. The 1998 Missoula Urban Comprehensive Plan Update and the 2005 Growth Policy clearly state that the map densities are general and increased density may be appropriate if urban services become available, particularly public sewer and public transportation (1998 Missoula Urban Comprehensive Plan Update, page 81; 2005 Growth Policy, page 3-4; City Council Minutes, 12-03-07, pages 5-6, referenced in the City Council Minutes, 12-10-07, page 36). 8. City Council determined that the subdivision complies with the following goals and objectives of the 1995 Rattlesnake Valley Comprehensive Plan Amendment (pages 18-20): a. Encourage the highest density of residential development in the southern portions of the Rattlesnake Valley and gradually lower density of development to the northern portions of the Valley (page 19). b. Cluster developments to protect environmentally sensitive lands (page 19; City Council Minutes, 12-10-07, page 36). c. Protect natural resources such as wildlife corridors and habitat (page 19) d. Preserve the maximum amount of open space (page 19) e. Provide development incentives within the area served by sewer (page 21) f. Reduce groundwater pollution and pollution of Rattlesnake Creek by limiting development and roadways adjacent to the creek, and by expanding sewer service into the priority portions of the Rattlesnake Valley (page 18). g. Preserve the scenic views of Waterworks Hill, the hills occurring at the northwest corner and along the northern boundaries of the planning area, Mount Jumbo, and the slopes north of Mount Jumbo by encouraging clustered homesites, conservation easements, and other land preservation techniques (page 18). h. Design new land use development to be compatible with and enhance the characteristics of the different neighborhoods in the Rattlesnake Valley (page 20). i. Preserve and enhance the health, safety, and welfare of Missoula and Rattlesnake Valley residents by creating a sound basis for growth which preserves the amenities of the Rattlesnake, including but not limited to, critical open space and water quality and which limits increases in air pollution (page 20). j. Provide connections between neighborhood parks, open space, churches, commercial areas, and schools (page 19). 9. City Council approved the zoning of the property to the RLD-2 (Residential) zoning district with a PUD Overlay that restricted the development to 37 dwelling units on the 34.08-acre property, with a resulting maximum density of 1.09 dwelling units per acre (City Council Minutes, 12-17-07, pages 5 & 15). ---PAGE BREAK--- 22 2. Whether the zoning will lessen congestion in the streets 1. Given the location of the site in the urban growth area and connecting to Duncan Drive, a local collector street, any increased traffic due to the rezoning will have a negligible impact on traffic congestion. 2. Off-street parking requirements and the subdivision design to meet all City street standards will aid in lessening congestion in the streets. 3. City Council determined that the required improvements to Teddy Turn, an existing road, partially mitigate the increase in traffic as a result of this subdivision. 3. Whether the zoning will secure safety from fire and other dangers 1. Available tools to mitigate and control the threat to public safety appear to be adequate or could be made readily available. 2. The site is served by the City Fire Department and the City Police Department. 3. City Council weighed the fire safety concerns and determined that purported potential hazards related to light, flashy fuels and the location of the site within a Wildland / Urban Interface could be adequately mitigated by imposing a condition of approval requiring the covenants to be amended to require City Fire Department inspection and approval of compliance with City WUI standards (PAZ Minutes, 12-14-07, pages 4-5). 4. City Council considered public safety concerns relating to the length of the temporary Beethoven Lane cul-de-sac and determined that since the cul-de-sac exceeded the standard by only 50’, and since the cul-de-sac was planned to connect as a loop road in the planned Duncan Meadows subdivision, the public safety concern was adequately mitigated (City Council Minutes, 12-17-07, pages 16-17). 5. City Council weighed the evidence of the purported hazard related to purported potential pipeline explosion and determined that following the Yellowstone Pipe Line Company (YPL) encroachment guidelines was sufficient to mitigate this potential public health and safety hazard since there was an extremely remote chance of a pipeline explosion as a result of this subdivision (Subdivision Regulations Article 6. City Council weighed the evidence of the purported hazard relating to the Quaternary landslide, including that no landslide activity had apparently occurred as a result of other construction/development in the immediate area, and determined that the evidence presented by Mr. Weikel was more credible, and since there was an extremely remote chance of landslide activity as a result of this subdivision that any purported hazards related to any purported potential landslide could be mitigated by conducting a geo-technical study and following the recommendations when developing the property (PAZ Minutes, 12-12-07, page 7. City Council weighed the evidence of the purported hazard relating to the Clark Fork Fault line, including the lack of activity on the fault line for the past 35 million years, and determined that the evidence presented by Mr. Weikel was more credible, and since there was an extremely remote chance of new activity on the fault line as a result of this subdivision, that the presence of the fault line did not present a hazard to development of the subject property (PAZ Minutes, 12-12-07, page 4. Whether the zoning promotes the health and general welfare 1. Law enforcement personnel and procedures are available to address potential problems of noise, property damage, or personal injury. 2. The site is served by the City Fire Department and the City Police Department. 3. The site is served by City sewer and public water. ---PAGE BREAK--- 23 5. Whether the zoning provides adequate light and air; AND 6. Whether the zoning will prevent overcrowding of the land; AND 7. Whether the zoning will avoid undue concentration of population 1. This rezoning will not adversely impact the provision of adequate light and air, or result in the overcrowding of the land or undue concentration of population. 2. The PUD Overlay approved by City Council restricted the development to 37 dwelling units on the 34.08-acre property, with a resulting maximum density of 1.09 dwelling units per acre. 3. The PUD Overlay approved by City Council required a maximum building height of 30’, except for Lots 9, 10, 12, 18, 19, 20, 26, 27, 28, 29 and 30 (as shown on the revised plat / concept, dated 12-14-07, provided as Attachment which are restricted to a maximum building height of 26’ (Email sent to City Council members on 12-17-07, referenced in City Council Minutes, 12-17-07, page 8; City Council Minutes, 12-17-07, pages 5, 9, & 15). 4. The PUD Overlay approved by City Council also required minimum setbacks to be as outlined in RLD-2 (Residential) except that lots less than 10,000 square feet may be subject to RLD-4 (Residential) setbacks. The setbacks required by RLD-4 are a 20’ front yard, 20’ rear yard, and a side yard of 7.5’ and no less than 1/3 the building height (Email sent to City Council members on 12-17-07, referenced in City Council Minutes, 12-17-07, page 8; City Council Minutes, 12-17-07, pages 5, 9, & 15). 5. The PUD Overlay approved by City Council also restricted building coverage (including all primary and accessory buildings on the lot) to a maximum of 40% of the lot area (Email sent to City Council members on 12-17-07, referenced in City Council Minutes, 12-17-07, page 8; City Council Minutes, 12-17-07, pages 5, 9, & 15). 8. Whether the zoning facilitates the adequate provision of public services 1. The requested zoning facilitates the adequate provision of public services because the area is inside the Urban Growth Area and the Wastewater Treatment Facilities Service Area. 2. All utilities and public services will be available to this property. 9. Whether the zoning gives reasonable consideration to the character of the district; AND 10. Whether the zoning gives consideration to the peculiar suitability of the district for the particular uses 1. The rezoning request, as modified by City Council to restrict density to approximately 1.09 dwelling units per acre, and restrict height, building setbacks, and lot coverage, is suitable for the subject property and gives reasonable consideration to the character of the district. 11. Whether the zoning was adopted with a view toward conserving the value of the buildings 1. Careful building design of any possible new construction may conserve the value of this and nearby properties. 12. Whether the zoning will encourage the most appropriate use of land throughout the municipality 1. The rezoning proposal, as modified by City Council, will encourage the most appropriate use of this land in the community. 2. The property falls within the UGA, where urban densities are appropriate, and has been annexed into the waste water service area. 3. The property is served by urban infrastructure and services, including City sewer, public water, Mountain Line bus service, City Fire, City Police, Missoula hospitals, and utilities. ---PAGE BREAK--- 24 4. The subdivision, which is located in the Mid-Rattlesnake was approved at approximately 1 dwelling unit per acre, a medium density which provides a transition from the higher densities of the Lower Rattlesnake to the lower densities of the Upper Rattlesnake. 5. Impacts to natural resources, including riparian areas and wildlife habitat, are mitigated by requirements in the City Zoning Ordinance, the subdivision design (which provides common areas and No-Build Zones on riparian areas and as a buffer to the adjacent City open space), and conditions of subdivision approval imposed by City Council. SUBDIVISION FINDINGS OF FACT ZONING AND COMPREHENSIVE PLAN COMPLIANCE Findings of Fact: 1. The property is unzoned and is currently vacant (Subdivision application, page 2, included in Section 3 of the application packet; City Zoning map). 2. Adjacent land uses include residential lots to the east and south, vacant land proposed as the Duncan Meadows subdivision to the north, and City Open Space to the west. (Submittal packet: page 2 application) 3. Adjacent lot sizes range from one-acre lots to larger lots of 2-½ acres, 3, 4 and 5 acres in size. Cleaves owns a 31-acre tract to the south, and Cooney owns a 65-acre tract to the north, proposed as Duncan Meadows subdivision. (Missoula County Geographic Information Systems) 4. East of Duncan Drive is unzoned land and across Rattlesnake Creek is RLD-2 (Residential 2 du/ac) zoning, and the Spurlock property to the west is zoned C-RR2 (Residential 2 du/ac) in the County. Rattlesnake Creek and the City’s Open Space are zoned (P-1) Open Space. (City Zoning map) 5. The applicant requested to zone the property to RLD-2 (Residential). (Submittal packet: section 4, rezoning application) 6. The maximum residential density in the RLD-2 district is two dwelling units per acre. (City Zoning Regulations, Title 19; Submittal packet: section 4, rezoning application) 7. The area of subdivision is 34.08 acres. (Submittal packet: page 1 application) 8. The average lot size is 15,251 square feet (0.35 acres), and the median lot size is 14,672 square feet (0.34 acres) (Revised plat / concept, dated 12-14-07, provided as Attachment 9. The 1995 Rattlesnake Valley Comprehensive Plan Amendment and the 1998 Missoula Urban Comprehensive Plan Update are the applicable amendments to the 2005 Growth Policy Update which applies to this property. The recommended land use designation for the subject property is Residential, one dwelling unit per two acres and one dwelling unit per five to ten acres. 10. The 2005 Missoula County Growth Policy Update states that the Urban Growth Area establishes “the physical area surrounding the community where growth is encouraged and beyond which growth is limited or discouraged.” (page 4-5) 11. The 1998 Missoula Urban Comprehensive Plan Update (page 80) provides the following guidance in regards to residential development on the urban fringe: “While low density development in the fringe areas has been a natural part of the urban land use pattern, it should be reexamined in the light of recent pressures of new development and the resulting increases in the cost of providing essential urban services.” (City Council Minutes, 12-10-07, page 36.) 12. The 1998 Missoula Urban Comprehensive Plan Update and the 2005 Growth Policy clearly state that the map densities are general and increased density may be appropriate if urban services become available, particularly public sewer and public transportation (1998 Missoula ---PAGE BREAK--- 25 Urban Comprehensive Plan Update, page 81; 2005 Growth Policy, page 3-4; City Council Minutes, 12-03-07, pages 5-6, referenced in the City Council Minutes, 12-10-07, page 36). 13. The land use designation for the 1995 Rattlesnake Valley Comprehensive Plan Amendment (Map #13: Rattlesnake Valley Planning Area, Land Use) is “Residential” for the subject property, with a recommended density of one dwelling unit per two acres on approximately 14.6 acres located generally in the central portion of the property and one dwelling unit per five to ten (10) acres on approximately 19.5 acres on the east and west sides of the property. 14. Resulting density from the 1995 Rattlesnake Valley Comprehensive Plan land use designation, based on a proportional average of the land use designation acreages, is one dwelling unit per three acres. 15. The land use designation for the 1995 Rattlesnake Valley Comprehensive Plan Amendment was made before the area was annexed into the waste water treatment facilities area and was included within the urban growth area boundary (PAZ Minutes, 12-05-07, page 16. On July 24, 2006, the City of Missoula passed Resolution No. 7119 expanding the Wastewater Facility Service Area to include this property (City Council Minutes, 12-10-07, page 36). 17. According to findings in Resolution No. 7119, the recommended Wastewater Facilities Service Area is designated to encourage infill growth within an existing urban area (PAZ Minutes, 12-05-07, page 18. Resolution No. 7119 also states that Missoula “City/County, by an oversight during the 1999 Wastewater Facility Plan Update,” left out some portions of the remaining 592 acres from the Wastewater Facility Service Area Boundary as intended under a March 20, 1989 sewer service agreement. Resolution No. 7119 further states that “the City of Missoula desires to include any remaining portions of those properties subject to the March 20, 1989 sewer service agreement” which includes the subject property (Resolution No. 7119, page 2 – 19. OPG staff recommended conditional approval of rezoning the property to RLD-2 (Residential) with the condition that the rezoning also include a PUD Overlay that restricted the density to the number of units approved in the subdivision. The PUD Overlay was included in the staff report recommendation; was reviewed and approved by Planning Board; and was reviewed, approved and amended by City Council (Staff report, Planning Board Attachment Planning Board Minutes, page 8; PAZ minutes, 12-05-07, page 5; City Council minutes, 12- 10-07, page 36). Conclusions of Law: 1. City Council determined that the subdivision complies with the following goals and objectives of the 2005 Missoula County Growth Policy (page 3-4): a. Encourage and support new land development within or immediately adjacent to areas where public services are currently available both to maximize local government efficiency and to promote a logical growth pattern. b. Encourage development at appropriate densities within the urban growth area. c. Encourage a residential land use pattern which provides a high quality living environment in a variety of residential settings, protects public health and safety, minimizes local government service costs, and preserves natural resources. d. Encourage the design of low density development within or adjacent to the urban growth area in such a way as to accommodate potential re-subdivision and infill. (City Council Minutes, 12-03-07, page 6, referenced in the City Council Minutes, 12- 10-07, page 36.) ---PAGE BREAK--- 26 2. City Council determined that the subdivision complies with the following goals and objectives of the 1998 Missoula Urban Comprehensive Plan Update (page 81): a. Comprehensive Plan map land use designation densities are intended to be general, and to represent a range and a general sort of development pattern which can be anticipated. b. Density should be tied to urban services, particularly sewer and public transportation. c. Actual site characteristics should also be considered when evaluating a proposed development. d. Areas adjacent to the growth area with no community sewer are recommended for suburban residential development at a maximum density of 2 units per acre. Where sewer and other services are available, and there are no environmental constraints, greater density may be appropriate. City Council Minutes, 12-03-07, pages 5-6, referenced in the City Council Minutes, 12- 10-07, page 36. 3. The 1998 Missoula Urban Comprehensive Plan Update and the 2005 Growth Policy clearly state that the map densities are general and increased density may be appropriate if urban services become available, particularly public sewer and public transportation (1998 Missoula Urban Comprehensive Plan Update, page 81; 2005 Growth Policy, page 3-4; City Council Minutes, 12-03-07, pages 5-6, referenced in the City Council Minutes, 12-10-07, page 36). 4. City Council determined that the subdivision complies with the following goals and objectives of the 1995 Rattlesnake Valley Comprehensive Plan Amendment (pages 18-20): a. Encourage the highest density of residential development in the southern portions of the Rattlesnake Valley and gradually lower density of development to the northern portions of the Valley (page 19). b. Cluster developments to protect environmentally sensitive lands (page 19; City Council Minutes, 12-10-07, page 36). c. Protect natural resources such as wildlife corridors and habitat (page 19) d. Preserve the maximum amount of open space (page 19) e. Provide development incentives within the area served by sewer (page 21) f. Reduce groundwater pollution and pollution of Rattlesnake Creek by limiting development and roadways adjacent to the creek, and by expanding sewer service into the priority portions of the Rattlesnake Valley (page 18). g. Preserve the scenic views of Waterworks Hill, the hills occurring at the northwest corner and along the northern boundaries of the planning area, Mount Jumbo, and the slopes north of Mount Jumbo by encouraging clustered homesites, conservation easements, and other land preservation techniques (page 18). h. Design new land use development to be compatible with and enhance the characteristics of the different neighborhoods in the Rattlesnake Valley (page 20). i. Preserve and enhance the health, safety, and welfare of Missoula and Rattlesnake Valley residents by creating a sound basis for growth which preserves the amenities of the Rattlesnake, including but not limited to, critical open space and water quality and which limits increases in air pollution (page 20). j. Provide connections between neighborhood parks, open space, churches, commercial areas, and schools (page 19). 5. City Council considered the 1995 Rattlesnake Valley Comprehensive Plan Amendment, which recommended land use designations and densities for the property, and testimony from members of the public who felt that the density permitted by the RLD-2 Zoning District ---PAGE BREAK--- 27 was too high (Planning Board Minutes, 12-04-07, page 18 and 20; City Council Minutes, 12- 10-07, pages 45, 46, and 53). 6. City Council also considered the express preference of the subdivider, as required by MCA 76-3-608(5)(b) and Subdivision Regulations Article 4-1(12), the property’s incorporation into the UGA boundary and the expanded waste water treatment area boundary in 1996, and the goals and objectives of the applicable comprehensive plans, and determined that the approximately 1 dwelling unit per acre density was appropriate in this location (City Council Minutes, 12-17-07, pages 5 & 15). 7. City council determined that the PUD Overlay greatly reduces the intensity and impact of the development from what is permitted in RLD-2 as follows: a. Density is restricted to nearly half of what is permitted in RLD-2, b. Building height is reduced to 26 feet for 11 lots in the subdivision, and c. Lot coverage is restricted to 40% of the lot area where no lot coverage restrictions exist with RLD-2. (City Council Minutes, 12-17-07, pages 5, 9, & 15; Email sent to City Council members on 12-17-07, referenced in City Council Minutes, 12-17-07, page 8) 8. City Council determined that the approximately 1 dwelling unit per acre density substantially complies with the goals and objectives of the 2005 Missoula County Growth Policy and its applicable amendments, the 1995 Rattlesnake Valley Comprehensive Plan Amendment and the 1998 Missoula Urban Area Comprehensive Plan. 9. City Council approved the zoning of the property to the RLD-2 (Residential) zoning district with a PUD Overlay that restricted the development to 37 dwelling units on the 34.08-acre property, with a resulting maximum density of 1.09 dwelling units per acre (City Council Minutes, 12-17-07, pages 5 & 15). PRIMARY CRITERIA COMPLIANCE CRITERION 1: EFFECTS ON AGRICULTURE AND AGRICULTURAL WATER USER FACILITIES Findings of Fact: 1. The property has no recent history of being used for agricultural purposes. 2. The soils on the property are classified as 8 Argixerolls – Haploxerolls complex, 4 – 15%. According to the Missoula County Farmland Classification Table, these soil types are Farmland Soils of Local Importance. 3. There are no irrigation ditches on or adjacent to the property. Conclusions of Law: 1. No loss to agricultural land will result from the proposed subdivision based on past use. 2. This proposal will remove an area with soils designated farmland of local importance from potential agricultural use and convert it to suburban residential use. 3. No impacts to agricultural water users or water user facilities are foreseen as a result of this subdivision. CRITERION 2: EFFECTS ON LOCAL SERVICES Roads, Driveways and Drainage Findings of Fact: 1. The subdivision property is accessed from Duncan Drive, a City public right-of-way, to Teddy Turn, an existing private access road serving this property as well as a number of other properties in the vicinity. ---PAGE BREAK--- 28 2. Teddy Turn extends through this property to the adjoining property north of this property, as part of the proposed Duncan Meadows subdivision. The Duncan Meadows subdivision is still in preliminary stages. 3. The existing 60’ wide private access and public utility easement connecting to the property to the north will be abandoned, and the subdivider will construct Teddy Turn just west of this easement location, in an area deemed more suitable for road construction. 4. Both Teddy Turn and Beethoven Lane terminate in temporary cul-de-sacs which are planned to connect to roads in the proposed Duncan Meadows subdivision at a later date. 5. In order to manage the expectations of future homeowners who buy homes on what appear to be cul-de-sac streets, City Council imposed a condition of approval requiring the covenants to be amended to indicate that Teddy Turn and Beethoven Lane are planned for extension to serve future development to the north. 6. In the submittal packet, all roads were proposed by the subdivider to be private roads. City Engineer and Transportation Planners recommended that all roads within the subdivision, except the short courts, and the portion of Teddy Turn extending from Duncan Drive to the east boundary of the subdivision, be dedicated as a public roadway. 7. Montana Department of Transportation District Traffic Engineer Glen Cameron encourages the City to identify all impacts generated by this subdivision on the transportation system and require full mitigation by the subdivider. 8. City Council imposed a condition of approval requiring all roads, except the approved short court, and Teddy Turn between the subdivision and Duncan Drive, to be dedicated as public rights-of-way. 9. The plat contains an SID/RSID waiver for Duncan Drive, which is a public road. 10. The plat contains an SID/RSID waiver for Bach, Mozart, Beethoven, and Teddy Turn. SID’s / RSID’s are not a feasible funding mechanisms for private roads; however, since the roads were required to be dedicated as public rights-of-way, SID’s / RSID’s were appropriate. City Council imposed a condition of approval requiring Brahms Way to be included in the waiver statement. 11. Further, City Council imposed a condition of approval requiring the SID / RSID waiver statement to be included in the covenants. 12. In the subdivision design approved by City Council, all roads meet City road width standards, with a 32-foot paved road, back to back of curb, within a 60-foot right-of-way. 13. All roads within the approved subdivision were designed to meet the requirement of 8% maximum grade, with grades up to 10% for a maximum of 50 feet. 14. One short court was approved by City Council, serving Lots 32 – 36, as a private road. Short courts are required to be private roads. 15. The short court meets all City Subdivision requirements, including a hammerhead turn- around and two overflow parking spaces within an easement on Lots 30 and 31 at the end of the short court. 16. In the subdivision approved by City Council, the short court located in the southeast corner of the subdivision (serving the former Lots 35-38) was deleted by City Council. 17. Teddy Turn does not exceed the maximum 1000-foot length for a rural cul-de-sac road; however, Beethoven Lane is designed to be 1,050 feet long, 50’ beyond the maximum allowed length of cul-de-sac streets in rural subdivisions. The applicant requested a variance from this requirement, and City Council approved the variance request. (See Variance Section.) 18. City Fire Marshal Bob Rajala commented that cul-de-sacs pose a potential response time issue, urging the subdivider to connect the roads in Sonata Park to the roads in the proposed Duncan Meadows subdivision to the north. ---PAGE BREAK--- 29 19. The City Fire Department encourages connection of the roads within this subdivision to roads proposed in Duncan Meadows to reduce or eliminate the number of cul-de-sacs to improve emergency response. 20. The Beethoven Lane and Teddy Turn cul-de-sacs will connect to future roads proposed for the Duncan Meadows subdivision to create a loop road to serve both subdivisions (PAZ Minutes, 12-12-07, page 21. Jason Diehl, Assistant Chief, City Fire Department clarified that the concern originally expressed by the Fire Department over the length of the Beethoven Lane cul-de-sac was in relation to general cul-de-sac development, and that the Fire Department would prefer connectivity of a traditional grid-type pattern, which improves response times. Mr. Diehl stated that the Fire Department had no concern with approving the length of cul-de-sac variance for Beethoven Lane since this is a temporary cul-de-sac that will eventually be replaced by a loop road connection when the property to the north is developed (PAZ Minutes, 12-14-07, page 22. City Fire Chief Tom Steenberg noted that the property was within their response time goals, and that he had no qualms about providing protection to the homes (PAZ Video, 12- 12-07, from minute 11:00 to minute 17:00 on the tape). 23. City Council considered public safety concerns relating to the length of the cul-de-sac and determined that since the cul-de-sac exceeded the standard by only 50’, and since the cul- de-sac was planned to connect as a loop road in the planned Duncan Meadows subdivision, the public safety concern was adequately mitigated (City Council Minutes, 12-17-07, pages 16-17). 24. In order to bring the subdivision into compliance with the requirement to access all lots from the road with lowest classification, City Council imposed a condition of approval requiring the plat to be revised to show a 1’ No-Access Strip along all corner lots on the Teddy Turn frontage. Drainage 25. Missoula City Subdivision Regulations Section 3-4(2)(C) states that all surface run-off in addition to that normally present before subdivision shall be retained on site or released from the site in a manner which will not substantially increase the peak run-off normally present before subdivision. 26. The Health Department Water Quality District commented that the proposed storm water drainage plan, which utilizes surface infiltration and detention, is appropriate. 27. The entirety of the Sonata Park property is within a single drainage basin containing approximately 227.9 acres, an outlet of which is a 36-inch culvert that passes under Duncan Drive approximately 100 feet north of the Duncan Drive / Teddy Turn intersection. Outflows ultimately discharge to Rattlesnake Creek. 28. Sonata Park includes approximately 1,500 feet of new roads, plus improvements to Teddy Turn and Brahms Way. 29. A natural, vegetated drainage way forms the backbone of the stormwater retention and conveyance system for this project. 30. The subdivision design approved by City Council includes a detention pond within a drainage easement on the southeast side of the property with one foot depth to retain a 2- year storm and an additional foot to retain a 10-year storm. 31. Storm sewer locations are shown on the preliminary plat. 32. City Council imposed a condition of approval requiring the drainage detention pond to be constructed in a location approved by City Parks and Recreation so as to not conflict with the recommended 20’ wide public pedestrian access easement and to ensure that no ---PAGE BREAK--- 30 existing native trees or shrubs are removed from this area in order to accommodate construction and ongoing operation of the detention pond. 33. According to Missoula City Subdivision Regulations Section 3-2(14)(B), curb and gutter is required for rural subdivisions that have an average street frontage of 175 feet or less per street or where a need for access control, drainage control or pedestrian or traffic safety concerns are an issue; or where turning movements may result in vehicles leaving the driving lane; or where the potential for on-street parking exists. 34. The average street frontage is less than 175 feet, and the subdivision design includes curb and gutter for all on-site streets and for the portions of Brahms Way adjacent to the subdivision, and for the north side of Teddy Turn extending to Duncan Drive. 35. City Council imposed a condition of approval requiring the plat to contain an SID / RSID waiver for all roads within this subdivision, as well as affected off site roads – Teddy Turn, Brahms Way and Duncan Drive, which includes drainage facilities. 36. Grading, drainage and erosion control plans are required to be reviewed and approved by Public Works prior to final plat approval. Conclusions of Law: 1. The subdivision meets required road, driveway and drainage standards with the variances granted by City Council and with the conditions of approval imposed by City Council. Pedestrian Access Findings of Fact: 1. The Missoula City Subdivision Regulations require 5’-wide concrete boulevard sidewalks with 7’-wide landscaped boulevards along both sides of all streets within the subdivision. The subdivision design meets this standard. 2. The Missoula City Subdivision Regulations require 5’-wide concrete boulevard sidewalks with 7’-wide landscaped boulevards along both sides of all streets adjacent to the subdivision. The subdivider requested, and City Council granted, a variance to only require sidewalk on one side of Brahms Way and Teddy Turn adjacent to the subdivision. (See Variance Section.) 3. The subdivision design approved by City Council includes a 5’-wide concrete boulevard sidewalk with a 7’-wide landscaped boulevard along the north side of Teddy Turn from the eastern edge of the subdivision to Duncan Drive. 4. To accommodate future connection from Duncan Drive to the City Open Space, City Council imposed a condition of approval requiring the dedication of an east-west 20’-wide public pedestrian easement through the common area. Based upon the natural drainage through the center of the common area and the drainage area for the subdivision along the south side of the common area, City Parks and Recreation Open Space Program Manager Jackie Corday recommended that the easement be placed about midway up the draw along the northern half of the common area. 5. It is possible some day that the City could develop a trail to serve residents within this subdivision within these strips of land linking Creek Crossing all the way to the North Hills Open Space. The only way to preserve that possibility was to require a 20’-wide public access easement through the Sonata common area. 6. The plat contains an SID / RSID waiver for all streets within this subdivision as well as Teddy Turn and Duncan Drive, including pedestrian facilities. 7. This subdivision is not within the Missoula Urban Transportation District, and Mountain Line recommended that the subdivider petition this property into the district. City Council required this in a condition of approval. 8. The school bus stops at the intersection of Teddy Turn and Duncan Drive. ---PAGE BREAK--- 31 Conclusions of Law: 1. The subdivision meets the required standards for pedestrian access with variances granted by City Council and with the conditions of approval imposed by City Council. Water System and Sewer System Findings of Fact: 1. The subdivision will be served by City sewer and Mountain Water. 2. Sanitary sewer service will be provided by gravity mains with a lift station in the Creek Crossing Road right-of-way just west of Rattlesnake Creek. 3. A force main will be installed across Rattlesnake Creek to connect to the existing main at the intersection of Creek Crossing Road and Creekwood Road. 4. A water main has been installed in the Teddy Turn right-of-way, and according to the submittal packet, the pressure in this zone is adequate to serve the proposed subdivision. 5. Review of water and sewer systems is under the jurisdiction of state and local health authorities under the Montana Sanitation in Subdivision Act. Conclusions of Law: 1. Water and sanitation will be provided for this subdivision. Solid Waste Findings of Fact: 1. Allied Waste will provide disposal service to the subdivision. Conclusions of Law: 1. Solid waste disposal is available to the subdivision. Parks and Recreation Findings of Fact: 1. City Subdivision Regulations Article 3-8(3) requires the subdivider to dedicate park land or cash-in-lieu of parkland totaling 11% of the lands proposed to be subdivided into lots less than ½ acre, 7.5% of the lands proposed to be subdivided into lots larger than ½ acre and not larger than one acre, and 5% of the lands proposed to be subdivided into lots larger than one acre and not larger than three acres. 2. The parkland dedication required for this 34.08-acre subdivision with 12.95 acres of lotted area, per the revised plat/concept dated 12-14-07, provided as Attachment B, is 1.40 acres. 3. To meet the parkland dedication requirement for this subdivision, City Council approved 16.26 acres of common area. 4. Missoula Parks and Recreation Open Space Program Manager Jackie Corday stated that “designation of the central draw as common area is acceptable and actually preferable to public park.” 5. City Open Space borders this property on the west. 6. The proposed common area lines up with a strip of parkland dedicated to the City with the Papoose Ranch subdivision that connects to Duncan Drive. Across Duncan Drive there is another City-owned 80’ wide strip of land that connects all the way to Creek Crossing on the east side of Rattlesnake Creek. 7. There are currently two public access points to the North Hills Open Space in fairly close proximity to the subject property – to the south there is a trail due west of Mountain View Drive and to the north City Open Space is adjacent to Duncan Drive for about 1,100 feet. Jackie Corday stated that there is no need to require the subdivider to construct a public trail through Sonata Park’s east/west common area at this time. ---PAGE BREAK--- 32 8. City Council imposed a condition of approval requiring the dedication of a 20’-wide public pedestrian access easement across the Sonata Park common area to connect the City park on Papoose Ranch II Subdivision to the City Open Space property west of the subdivision, but did not require the developer to construct the trail within the easement (Subdivision Regulations 3-8). 9. The land use recommendation in the 1995 Rattlesnake Valley Comprehensive Plan Update for the properties in this area is reflective of the goal of preserving a buffer adjacent to the City’s Open Space. In the submittal packet, the subdivision design only included a 30’-wide separation between the City Open Space and lots and roads. The plan contemplated as much as 300’ buffer width. 10. City Council imposed a condition of approval that required adjusting the plat to provide at least 100’ of separation between the City Open Space and lots and roads in this subdivision as demonstrated on the revised plat/concept dated 12-14-07, provided as Attachment B. 11. City Council imposed a condition of approval requiring the subdivider to prepare a plan for common area, pedestrian easement and boulevard area improvements, including but not limited to, landscaping, a weed management plan, a trail plan, maintenance and any proposed improvements guarantee. The condition also requires the subdivider to install improvements to the common area(s), pedestrian easement and boulevard areas or be included in the improvements guarantee. 12. City Council imposed a condition of approval requiring a development agreement to be filed that states that the developer shall provide all maintenance of common area(s), pedestrian easements, and boulevard areas until enough development to support the homeowner’s association has taken place. 13. The property is in an area designated as an Existing and Potential Additional Open Space Cornerstone in the 1995 Urban Area Open Space Plan. This plan explains that designated cornerstones “may be proposed and approved for development, but any development proposal must contain appropriate park and open space provisions which address the goal of an urban area open space system” (page 29). 14. City Council imposed a condition of approval requiring that a 100’ No-Build Zone / Open Space buffer adjacent to the City Open Space be provided in order to help meet the goals of the 1995 Urban Area Open Space Plan and the designation as an Open Space Cornerstone. Conclusion of Law: 1. The subdivision meets the required standards for parkland dedication with the conditions of approval imposed by City Council. Schools Findings of Fact 1. The subdivision will result in approximately sixty-seven (67) additional school age children being added to the district, assuming 1 elementary age child and .75 secondary age child per household. 2. Children from this subdivision will attend Rattlesnake Elementary, Washington Middle School, and Hellgate High School. 3. There is school bus stop at the intersection of Teddy Turn and Duncan Drive. Conclusions of Law: 1. No adverse impacts on schools requiring mitigation have been identified. ---PAGE BREAK--- 33 Fire Department Findings of Fact: 1. City of Missoula Fire Department will serve the subdivision from the nearest station located approximately three miles away at the Pine Street Station. 2. In conformance with the Uniform Fire Code and Subdivision Regulations, the subdivision will be served by pressurized fire hydrants. City Council imposed a condition of approval requiring the fire hydrant plan to be reviewed and approved by the City Fire Department, and requiring fire hydrants to be installed prior to combustible construction as required by the City Fire Department approved hydrant plan (Subdivision Application p.17; Subdivision Regulations 3-2(2)(G), 3-7). 3. The City Fire Marshal recommended that all structures be addressed visible from the street. City Council imposed a condition of approval requiring the covenants to contain this provision, and requiring this section to not be amended or deleted without governing body approval. 4. Beethoven Lane exceeds the maximum allowed length of 1000 feet by 50 feet. The Beethoven Lane and Teddy Turn cul-de-sacs will connect to future roads proposed for the Duncan Meadows subdivision to create a loop road to serve both subdivisions (PAZ Minutes, 12-12-07, page 5. City Fire Marshal Bob Rajala commented that cul-de-sacs pose a potential response time issue, urging the subdivider to connect the roads in Sonata Park to the roads in the proposed Duncan Meadows subdivision to the north. 6. Jason Diehl, Assistant Chief, City Fire Department clarified that the concern originally expressed by the Fire Department over the length of the Beethoven Lane cul-de-sac was in relation to general cul-de-sac development, and that the Fire Department would prefer connectivity of a traditional grid-type pattern, which improves response times. Mr. Diehl stated that the Fire Department had no concern with approving the length of cul-de-sac variance for Beethoven Lane since this is a temporary cul-de-sac that will eventually be replaced by a loop road connection when the property to the north is developed (PAZ Minutes, 12-14-07, page 7. City Fire Chief Tom Steenberg noted that the property was within their response time goals, and that he had no qualms about providing protection to the homes (PAZ Video, 12- 12-07, from minute 11:00 to minute 17:00 on the tape). 8. Driveways must be designed to meet Fire Department standards; therefore, City Council imposed a condition of approval requiring Fire Department approval of driveway plans. 9. The property is within a Wildland / Residential Interface (WRI) and WRI standards are included within the covenants. 10. Members of the public expressed concerns about fire safety in the area, in particular the light, flashy fuels found in the grasslands on the site and in the adjacent area (PAZ Minutes, 12-05-07, page 6; City Council Minutes, 12-10-07, pages 50-51). 11. City Fire Chief Tom Steenberg expressed confidence that any fires in the area could be successfully fought. Mr. Steenberg noted that there will be adequate water supply at the site and that he has no qualms about providing protection to homes. Mr. Steenberg also noted that the Fire Department’s assessment of fuels was that a fire would burn only to the edge of the lawn (PAZ Minutes, 12-12-07, page 2; PAZ Video, 12-12-07, from minute 11:00 to minute 17:00 on the tape). 12. Jason Diehl, Assistant Fire Chief, City Fire Department, supported the Fire Department’s ability to influence and have input into areas being developed in Wildfire / Urban Interface areas of the City (PAZ Minutes, 12-14-07, page ---PAGE BREAK--- 34 13. City Council imposed a condition of approval requiring the covenants to be amended to require City Fire Department inspection and approval of compliance with City WUI standards (PAZ Minutes, 12-14-07, pages 4-5). Conclusions of Law: 1. City Council considered public safety concerns relating to the length of the temporary cul-de- sac and determined that since the cul-de-sac exceeded the standard by only 50’, and since the cul-de-sac was planned to connect as a loop road in the planned Duncan Meadows subdivision, the public safety concern was adequately mitigated (City Council Minutes, 12-17- 07, pages 16-17). 2. City Council weighed the fire safety concerns and determined that purported potential hazards related to light, flashy fuels and the location of the site within a Wildland / Urban Interface could be adequately mitigated by the provision of adequate water supply in the form of a pressurized hydrant system and by imposing a condition of approval requiring the covenants to be amended to require City Fire Department inspection and approval of compliance with City WUI standards (PAZ Minutes, 12-14-07, pages 4-5). 3. The subdivision meets the required standards for fire protection with the conditions of approval as imposed by City Council. Law Enforcement Findings of Fact: 1. The subdivision is located within the jurisdiction of the Missoula Police Department. 2. Comments relating to crime prevention and safety recommendations were received from the Missoula Police Department and are included in the application packet. Conclusions of Law: 1. Law enforcement service is available to the subdivision. CRITERIA 3 AND 4: EFFECTS ON THE NATURAL ENVIRONMENT AND WILDLIFE AND WILDLIFE HABITAT Findings of Fact: 1. Chapter 19.51 of the Missoula City Zoning Ordinance (Riparian Resource Zoning District) applies to this property since riparian resources are present. The intent of this chapter is to ensure that no construction be approved which is unsuitable by reason of flooding, inadequate drainage, soil and rock formations with severe limitations for development, severe erosion potential, unfavorable topography, damaging to areas of riparian resource or any other feature likely to be harmful to the public health, safety and welfare of the residents of the City of Missoula. 2. This chapter states, “No improvements of any kind shall be approved which are within the area of riparian resource, except for those improvements which are outlined in the management plan.” 3. The Missoula County Subdivision Regulations, Section 3-13, contains standards for Areas of Riparian Resource. This section is intended to ensure that no subdivision be approved which adversely impacts areas of riparian resource. The City of Missoula specifically intended that areas of riparian resource remain available to support diverse and productive aquatic and terrestrial riparian systems and habitats and to protect water quality; that stream channels, banks and lakeshores are protected; that areas of riparian resource are preserved to act as an effective sediment filters which help to maintain water quality; that areas of riparian resource be protected to preserve large, woody debris that is eventually recruited into a stream to maintain riffles, pools and other elements of channel structure and further to provide shade to regulate stream temperature; that areas of riparian resource be preserved ---PAGE BREAK--- 35 to promote floodplain stability; and, that the public interest in the quality and quantity of surface and ground waters be protected. 4. Furthermore, standards for development of land in areas of riparian resource are intended to be site-specific, allowing for flexibility for development while maintaining the integrity of these areas. 5. The Master Parks Plan & Recreation Plan has two relevant policies regarding riparian areas: 5.4 – “Preserve wildlife corridors and areas of high quality, natural vegetation” and 5.5 – “Avoid environmentally sensitive areas when locating trails and other developed areas.” 6. The property contains riparian resources areas within woody draws which are subject to the City’s Riparian Regulations (Chapter 19.51 of the City Zoning Ordinance and Section 3-13 of the City Subdivision Regulations). These areas exist on the subject property. 7. The definition of Area of Riparian Resource (Subdivision Regulations Article 3-13) includes “woody draws . . . and land containing any of the habitat or community types listed in Section 19.51.110,” which lists Non-Willow Shrub Types to include 1) succulent hawthorn, 2) common chokecherry, 3) woods rose, and 4) western snowberry. These species, plus ponderosa pine and Rocky Mountain juniper, are present on the subject property. 8. Both the zoning and subdivision regulations prohibit development within Areas of Riparian Resource, which includes an adjacent buffer area “where development may have a negative impact on wildlife habitat.” (City Zoning Ordinance Section 19.51.030 and Subdivision Regulations Article 3-13.) 9. The Resource Riparian Investigation submitted by the applicant states that “The upland succulent hawthorn community type at this site is located within a woody draw and will be preserved as common area. Adjacent upland vegetation [which the applicant concludes is not riparian] will be disturbed by proposed development.” 10. In order to bring the subdivision design into compliance with City regulations, City Council imposed a condition of subdivision approval requiring deletion of the four lots in the area of riparian resource (Lots 35 – 38), with a provision to allow the subdivider to recoup three lots as shown on the plat dated December 14, 2007. City Council also imposed a condition of approval requiring designation of this area as “No-Build / No-Disturbance,” which would prohibit disturbance of the native vegetation with utility installations at this location as well. 11. The subdivider did not prepare a Riparian Resource Management Plan and Map, as required by Section 3-13 of the Subdivision Regulations. Since the property contains riparian resources, City Council imposed a condition of approval requiring a plan and map based on the findings in the staff report to be reviewed and approved by OPG and City Parks and Recreation prior to final plat approval. 12. City Council imposed a condition of approval requiring that riparian areas and buffers be shown on the plat and that the management plan and riparian area map be included in the protective covenants to provide adequate notification to future lot owners. 13. City Council imposed a condition of approval requiring that riparian areas be labeled as “No- Build / No-Disturbance” Zones, defined as follows: “The No-Build / No-Disturbance Zone shall include the prohibition of all buildings, structures, fences, utilities, parking, roads, motorized vehicle access (except for routine maintenance activities), storage, containment of domestic animals, or any other development. It shall also prohibit any mining, cutting, burning, or removal of live or dead vegetation (except as needed for wildfire prevention, noxious weed control or conservation management), filling with substances such as gravel, soil, slash or other debris, or the planting of non-native vegetation such as lawn grasses.“ ---PAGE BREAK--- 36 14. The site is currently undeveloped rangeland. forbs and weeds are predominant, with a minor residual native species component. Occasional ponderosa pine, hawthorn and snowberry may be found on site. 15. According to the Montana Natural Resource Information System (NRIS), turkey, mule deer, moose, black bear, pheasant, elk, Hungarian partridge, spruce grouse and white-tailed deer are known to frequent the area proposed for subdivision. 16. The site lays at the southeastern-most edge of elk winter range, and per Montana Fish, Wildlife, & Parks, the subdivision is not expected to cause problems for elk, because most of the elk use is to the north and west, and upslope, of the proposed development (Montana Fish, Wildlife, & Parks agency comment letter, dated 01-26-07, page 1, included in Attachment A of the staff report). 17. Montana Fish, Wildlife, & Parks stated that while there is considerable use of the site by white-tailed deer, significant impacts on that population are not expected, given the fact that the deer are already an urbanized feature of the Rattlesnake Valley (Montana Fish, Wildlife, & Parks agency comment letter, dated 01-26-07, page 1, included in Attachment A of the staff report.) 18. Black bears and mountain lions are known to pass through the site and will probably continue to do so. Each year, FWP responds to problems in the Rattlesnake area related to improper storage of attractants (garbage, pet and/or livestock feed); unpicked, ripened fruit on trees; people purposefully feeding wildlife; and bird feeders. The potential presence of such attractants to bears and lions will greatly influence the risk of such encounters with humans living there, and Montana Fish, Wildlife and Parks has recommended addition covenant language to mitigate this concern (Montana Fish, Wildlife, & Parks agency comment letter, dated 01-26-07, pages 1-2, included in Attachment A of the staff report). 19. In order further mitigate human-wildlife problems, City Council imposed a condition of approval requiring the “Garbage” section of the covenants to contain information on managing garbage in a wildlife-friendly manner (PAZ Minutes, 12-14-07, page 20. The central east/west draw is an important wildlife corridor. This project will place a road across that corridor and potentially 49 homes to the north of the crossing (19 in Sonata Park, 30 in Duncan Meadows). That will generate approximately 400 trips per day and it is likely that drivers will exceed the 25 mph limit as they head downhill to the south. 21. In order to prevent collisions with deer or other wildlife, City Council imposed a condition of approval requiring the subdivider to install road signs that state “Wildlife Crossing – Reduce speed to 15 mph” at the south and north ends of the draw crossing and also install the type of speed bumps that are acceptable to Public Works and the Fire Department. 22. The property contains slopes over 10% and is therefore subject to the Hillside Design Standards in Section 3-14 of the Missoula City Subdivision Regulations. Approximately one acre of the property is on slopes 25% or greater, and these have been designated as “No-Build” Zones on the plat, except for gravel stock piles which are to be removed from the site. 23. City Council imposed a condition of approval that requires slopes greater than 25% to be designated as “No-Build” Zones and to be defined as follows: “The ‘No-Build Zone’ shall include the prohibition of all buildings, structures, fences (except for wildlife friendly fencing), roads, motorized vehicle access (except for routine maintenance activities), parking, storage, or any other development. It shall also prohibit any mining, cutting, burning, or removal of live or dead vegetation (except if needed for wildfire prevention, noxious weed control or conservation management), ---PAGE BREAK--- 37 filling with substances such as gravel, soil, slash or other debris, or the planting of non-native vegetation such as lawn grasses.” 24. For unzoned land, City Subdivision Regulations Article 3-14(2) requires adjusting density downward based on the land use designations in the comprehensive plan, which are one dwelling unit per two acres (15.37 acres) and one dwelling unit per five to ten acres (18.71 acres). 25. The number of units permitted in the one dwelling unit per two acres is six and the number of units permitted in the one dwelling unit per five to ten acres is 1 (using ten acres) or 2 (using five acres). Since the applicant is requesting rezoning, these calculations are not applicable to this proposal but do provide a basis for calculating density for the land as unzoned based on the land use designations and the hillside design standards. 26. There may be cut and fill slopes three feet or more in depth in the areas of the draws. The subdivider proposes to flatten these areas, and place topsoil and seed to revegetate these cuts and fill. The road will be constructed using the methods of erosion per the Storm Water Pollution Prevention Plan 27. The plat shows “Backslope Easements” on the west side of Brahms Way, the east side of a portion of Teddy Turn, and around Mozart Court and Beethoven Lane, to allow for road construction cut and fill to be accommodated outside of the road rights-of-way. Conclusions of Law: 1. Impacts to the natural environment and wildlife habit have been identified as a result of the subdivision and these impacts will be minimized with the conditions of approval imposed by City Council. CRITERION 5: EFFECTS ON PUBLIC HEALTH AND SAFETY Findings of Fact: 1. The property contains a 40’-wide utility easement for Yellowstone Pipe Line Company. The 10-inch products pipeline runs east-west through the property. 2. Larry Ostwald at Yellowstone Pipe Line Company states that the subdivision “will have little effect” on the pipeline (YPL Agency Comment Letter, October 23, 2006, provided as Attachment A of the staff report, which was provided in Attachment #4 of the PAZ Referral dated November 29 and December 7, 2007). 3. Encroachment guidelines provided by Yellowstone Pipe Line Company require a minimum setback of 50’ from the pipeline for all permanent structures. Most of the area within 50’ of the pipeline is designated as common area. The only lotted area within 50’ of the pipeline is on the southern portion of Lot 30 (per the revised plat / concept dated 12-14-07, provided as Attachment this area has been designated as a No-Build Zone (Revised plat / concept dated 12-14-07, provided as Attachment 4. Teddy Turn is proposed to be constructed over the Yellowstone Pipe Line. City Council imposed a condition of approval requiring plans for road construction across the Yellowstone Pipe Line to comply with Yellowstone Pipe Line Company Encroachment Guidelines. The condition imposed by City Council also requires that if required by Yellowstone Pipe Line, a signed and executed Encroachment Agreement shall be returned to the utility, and appropriate development provisions shall be included on the final plat and in the subdivision covenants. 5. Members of the public expressed concern that the potential of pipeline explosion created a public health and safety risk (City Council Minutes, 12-10-07, page 46 & 48). 6. Nick Kaufman, the applicant’s representative with WGM Group, Inc., noted that the risk of pipeline explosion was so low that it was not even on the actuary tables for insurance companies, so insurance companies don’t assess a risk or charge a higher rate for ---PAGE BREAK--- 38 properties adjacent to high-pressure gas lines (PAZ Minutes, 12-12-07, page 2; PAZ Video, 12-12-07, minute 18:45). 7. City Council weighed the evidence of the purported hazard related to purported potential pipeline explosion and determined that following the Yellowstone Pipe Line Company encroachment guidelines was sufficient to mitigate this potential public health and safety hazard since there was an extremely remote chance of a pipeline explosion as a result of this subdivision (Subdivision Regulations Article 8. Geologist W. I. Van der Poel expressed concern that the site lies in an area containing landslide deposits from a large Quaternary landslide, and that old landslides are well known for having the potential to be reactivated, and that development of this site could trigger a reactivation and threaten the integrity of the gas pipeline. Mr. Van der Poel indicated that this slide was relatively in place, in excess of 10,000 years (Letter dated November 29, 2007, included in Attachment C of the staff report, which is provided as Attachment #4 of the PAZ Referrals dated November 29 and December 7, 2007; PAZ Minutes, 12-12-07, page 9. Bill Weikel, civil engineer for WGM Group, Inc. (the applicant’s representative) investigated the landslide in geologic reports, field visits, and aerial photography analysis, and testified that the majority of the slide had likely occurred during the time of Glacial Lake Missoula, and concluded that there is nothing that would take place during development of the site that could come anywhere near recreating the effect of Glacial Lake Missoula, so therefore did not feel that there is potential for landslides in this planned development (Letter dated December 4, 2007, included as Attachment #6 of the PAZ Referral dated December 7, 2007). 10. None of the reviewing agencies or applicable planning documents identified the landslide as an issue (City Council Minutes, 12-10-07, page 39). 11. City Council weighed the evidence of the purported hazard relating to the Quaternary landslide, including that no landslide activity had apparently occurred as a result of other construction/development in the immediate area, and determined that the evidence presented by Mr. Weikel was more credible, and since there was an extremely remote chance of landslide activity as a result of this subdivision that any purported hazards related to any purported potential landslide could be mitigated by conducting a geo-technical study and following the recommendations when developing the property. City Council imposed a condition of approval requiring the subdivider to prepare a geotechnical study for the site, with any site alterations to conform to the recommendations contained in the geotechnical study (PAZ Minutes, 12-12-07, page 12. Geologist W. I. Van der Poel also noted that the site is underlain by the fault zone of the Clark Fork Fault (Letter dated November 29, 2007, included in Attachment C of the staff report, which is provided as Attachment #4 of the PAZ Referrals dated November 29 and December 7, 2009; City Council Minutes) . 13. Bill Weikel, civil engineer for WGM Group, Inc. (the applicant’s representative) commented that he did not believe that the fault was likely to reactivate since the most recent movement in the fault took place approximately 35 million years ago (Letter dated December 4, 2007, included as Attachment #6 of the PAZ Referral dated December 7, 2007). 14. None of the reviewing agencies or applicable planning documents identified the Clark Fork Fault line as an issue (City Council Minutes, 12-10-07, page 39). 15. City Council weighed the evidence of the purported hazard relating to the Clark Fork Fault line, including the distance the site is located from the fault line and the lack of activity on the fault line for the past 35 million years, and determined that the evidence presented by Mr. Weikel was more credible, and since there was an extremely remote chance of new activity on the fault line as a result of this subdivision, that the presence of the fault line did not ---PAGE BREAK--- 39 present a hazard to development of the subject property. However, in order to address and mitigate any purported potential soil instability concerns, City Council imposed a condition of approval requiring the subdivider to prepare a geotechnical study for the site, with any site alterations to conform to the recommendations contained in the geotechnical study (PAZ Minutes, 12-12-07, page 16. The EPA has designated Missoula as having a high radon potential (Zone The covenants contain a provision requiring property owners to incorporate passive radon mitigations systems. The Health Department recommended changing this language to radon resistant construction features, and City Council imposed a condition of approval requiring the language to be amended as recommended by the Health Department. 17. City Council imposed a condition of approval requiring the covenants to be amended to include the following language: The Missoula City-County Health Department recommends that builders consider using energy efficient building techniques such as building orientation to the sun, appropriately sized eaves, wind breaks, extra insulation, passive solar lighting, solar heating, and ground source heat pumps for heating/cooling. 18. Missoula City-County Air Pollution Control Program regulations prohibit the installation of wood burning stoves or fireplaces. Pellet stoves that meet emission requirements or natural gas or propane fireplaces may be installed. Pellet stoves require an installation permit from the Health Department. The covenants contain this provision; however, the Health Department recommends correcting some language in this section of the covenants, and City Council imposed a condition of approval requiring the language to be amended as recommended by the Health Department. 19. City Council imposed a condition of approval requiring the subdivider to prepare a Revegetation Plan for disturbed areas requiring revegetation with beneficial species of any ground disturbance created by construction on or maintenance of these lots. 20. City Council imposed a condition of approval requiring the covenants to be amended to require lot owners to maintain their lots in compliance with the Montana County Weed Control Act and the Missoula County Noxious Weed Management Plan. 21. City Council imposed a condition of approval requiring the covenants to be amended to include a Weed Management Plan for all undeveloped and planned open space areas of the subdivision, which includes provisions for making the developer responsible for the Plan’s implementation until enough development has occurred to support the Homeowners’ Association (PAZ Minutes, 12-14-07, page Conclusions of Law: 1. City Council weighed the evidence of the purported hazard related to purported potential pipeline explosion and determined that following the Yellowstone Pipe Line Company (YPL) encroachment guidelines was sufficient to mitigate this potential public health and safety hazard since there was an extremely remote chance of a pipeline explosion as a result of this subdivision (Subdivision Regulations Article 2. City Council weighed the evidence of the purported hazard relating to the Quaternary landslide, including that no landslide activity had apparently occurred as a result of other construction/development in the immediate area, and determined that the evidence presented by Mr. Weikel was more credible, and since there was an extremely remote chance of landslide activity as a result of this subdivision that any purported hazards related to any purported potential landslide could be mitigated by conducting a geo-technical study and following the recommendations when developing the property (PAZ Minutes, 12-12-07, page 3. City Council weighed the evidence of the purported hazard relating to the Clark Fork Fault line, including the distance the site is located from the fault line and the lack of activity on the ---PAGE BREAK--- 40 fault line for the past 35 million years, and determined that the evidence presented by Mr. Weikel was more credible, and since there was an extremely remote chance of new activity on the fault line as a result of this subdivision, that the presence of the fault line did not present a hazard to development of the subject property (PAZ Minutes, 12-12-07, page 4. Adverse impacts to public health and safety have been identified as a result of the subdivision and these impacts will be minimized with conditions of approval imposed by City Council. COMPLIANCE: This subdivision complies with: 1) SURVEY REQUIREMENTS Findings of Fact 1. The Seal of a Professional Land Surveyor or Engineer is required on all final plats, which states that the subdivision complies with part 4 of M.C.A. 76-3. Conclusion of Law: 1. This proposal meets the survey requirements. 2) SUBDIVISION REGULATIONS Findings of Fact 1. Subdivisions are required to comply with the local subdivision regulations provided for in part 5 of M.C.A. 76-3. 2. To ensure compliance with subdivision regulations, a condition of approval requires the Amendment Section of the covenants to be amended to include address signage, air pollution control, energy efficiency, SID’s / RSID’s, planned future extension of Teddy Turn and Beethoven Lane, riparian resource areas, and no-build zones as sections that may not be changed without prior written consent of the governing body. Conclusion of Law: 1. The developer has submitted a plat which complies with the requirements of local subdivision regulations or conditions have been required that will bring the plat into compliance. 3) REVIEW PROCEDURE Findings of Fact 1. Subdivisions are required to comply with the local subdivision review procedure provided for in Article 4 of the Missoula City Subdivision Regulations. 2. Notice of public hearing on this subdivision was published in the Missoulian on November 18th and 25th, 2007. Certified letters were mailed to adjacent property owners on October 22nd, 2007. On November 9th, 2007, a poster was placed at the property. 3. The Missoula Consolidated Planning Board held a public hearing on the subdivision on December 4th, 2007. 4. The Missoula City Council held a public hearing on the subdivision on December 10th, 2007. 5. A decision of the governing body rejecting or approving a proposed subdivision may be appealed to the district court within thirty days of such decision. The application shall specify the grounds upon which the appeal is made. An appeal may be made by the subdivider, a contiguous landowner, an owner of land within the City of Missoula who can establish a likelihood of material injury to property or its material value, or the City Council. In order to file an appeal, the plaintiff must be aggrieved by the decision, demonstrating that a specific personal and legal interest, as opposed to a general interest, has been or is likely to be specifically and injuriously affected by the decision. ---PAGE BREAK--- 41 Conclusion of Law: 1. This subdivision proposal has followed the necessary application procedure and has been reviewed within the procedures provided in Article 4 of the Missoula City Subdivision Regulations. D) PROVISION OF EASEMENTS FOR UTILITIES: Findings of Fact: 1. Public utility easements are located within the street rights-of-way 2. A 20’-wide utility easement runs east-west through the site. This utility line and easement may be relocated into a new easement. 3. The property contains a 40’-wide utility easement for Yellowstone Pipeline. The 10-inch products pipeline runs east-west through the property. 4. A sewer easement will extend west from the Park in Papoose Ranch II, in one of the woody draws which has been recommended for designation as a “No-Build / No-Disturbance” Zone, including the prohibition of utilities. Therefore, this easement for sewer will need to be relocated, most likely into the Teddy Turn right-of-way. 5. Sewer lines are proposed to extend east in the Creek Crossing Road right-of-way over to the east side of Rattlesnake Creek. 6. The 60’ wide private access and public utility easement, per Book 350 Micro, Page 167, will be vacated, as Teddy Turn will be constructed west of this existing easement. 7. All new utilities will be placed underground. 8. Northwestern Energy will provide natural gas and electric service. Qwest will provide telephone service, and cable TV will be provided by Bresnan Communications. Conclusions of Law: 1. The provision of easements for utilities will be met by this subdivision. E) PROVISION OF LEGAL AND PHYSICAL ACCESS: Finding of Fact: 1. Physical and legal access will be provided to the subdivision via Duncan Drive and Teddy Turn. Conclusion of Law: 1. The subdivision meets physical and legal access requirements. V. VARIANCE REQUESTS The governing body may grant a variance from the subdivision regulations when strict compliance would result in undue hardship and when it is not essential to the public welfare. Variance requests are evaluated based on the following criteria: A. The granting of this variance does not result in a threat to the public safety, health, or welfare, and is not injurious to other persons or property. B. The conditions upon which the request for variance are based are unique to the property for which the variance is sought and is not applicable generally to other property. C. Because of the physical surroundings, particular shape, or topographical conditions of the specified property involved, a hardship to the owner will result if the strict letter of these Regulations is enforced. D. The variance will not in any manner violate the provisions of the Missoula County Zoning Resolution, the Missoula County Comprehensive Plan, or the master plan for the area. E. The variance will not cause an increase in public costs. ---PAGE BREAK--- 42 The applicant has provided an analysis of each variance in the application packet. Below are staff recommendations and findings to support each recommendation. 1. A variance request from Section 3-2(13)(A)(1) requiring cul-de-sac roads to be 1000 feet in length or less. City Council Action: Approval to allow Beethoven Lane to be approximately 1,050 feet as shown on the plat, based on the findings of fact in the staff report. FINDINGS: A. The granting of this variance does not result in a threat to the public safety, health, or welfare, and is not injurious to other persons or property. 1. The Missoula City Subdivision Regulations allow a maximum length of 1000 feet for a cul-de-sac in a rural subdivision, as measured from the nearest intersection. 2. Teddy Turn, Bach Court, and Mozart Court do not exceed this maximum allowance. 3. Beethoven Lane is 1,050 feet and therefore exceeds the maximum length allowed by 50 feet. 4. The subdivider requested a variance to allow Beethoven Lane to exceed the maximum length allowance of 1000 feet. 5. The City Public Works Department supported the variance request. 6. City Fire Marshal Bob Rajala commented that long cul-de-sacs pose a potential response time issue and urged the subdivider to connect the roads in Sonata Park to the roads in the proposed Duncan Meadows subdivision to the north. 7. The Beethoven Lane cul-de-sac is a temporary cul-de-sac: The roads in this subdivision are planned to connect to the proposed subdivision north of this property (Duncan Meadows), making a looped road. 8. Approval of this variance will not result in a threat to public health, safety or welfare. B. The conditions upon which the request for variance are based are unique to the property for which the variance is sought and are not applicable generally to other property. C. Because of the physical surroundings, particular shape, or topographical conditions of the specified property involved, a hardship to the owner will result if the strict letter of these Regulations are enforced. 1. This property is within a Wildland-Residential Interface (WRI) and the covenants include design guidelines in the covenants to reduce the potential fire hazard in WRI areas. 2. Section 3-2(E) of the Missoula City Subdivision Regulations state that, “All subdivisions within areas of Wildland-Residential Interface (WRI) shall have more than one improved access route unless it is not feasible because of topographic or other constraints. 3. The plat indicates temporary cul-de-sacs for both Teddy Turn and Beethoven Lane, with planned for connections to roads in the Duncan Meadows subdivision to the north, resulting in looped road. 4. The topography of the site dictated the road layout. D. The variance will not in any manner violate the provisions of the Missoula City Zoning Ordinance, the Missoula Urban Area Comprehensive Plan, or the master plan for the area. 1. Approval of the variance will not violate the provisions of the Missoula City Zoning Ordinance or the Missoula Urban Area Comprehensive Plan. E. The variance will not cause an increase in public costs. ---PAGE BREAK--- 43 1. The plat contains an RSID/SID waiver for improvements to Teddy Turn, Duncan Drive and all roads within the subdivision, including Beethoven Lane. 2. No increase in public cost is foreseen with the granting of this variance. 2. A variance request from Section 3-2(15)(A)(2) requiring a 5-foot wide boulevard sidewalk and a 7-foot wide landscaped boulevard on the opposite side of the off-site portions of Teddy Turn and Brahms Way. City Council Action: Approval to permit Teddy Turn and Brahms Way to be constructed with boulevard sidewalk on one side of the road as proposed. FINDINGS: A. The granting of this variance does not result in a threat to the public safety, health, or welfare, and is not injurious to other persons or property. 1. The Missoula City Subdivision Regulations require 5’-wide concrete boulevard sidewalks with 7’-wide landscaped boulevards along both sides of Teddy Turn and Brahms Way where adjacent to the subdivision. 2. The subdivider requested a variance to only require sidewalk on one side of Brahms Way and Teddy Turn adjacent to the subdivision. 3. Although not required, the subdivision design includes installation of a 5’-wide concrete boulevard sidewalk with a 7’-wide landscaped boulevard along the north side of Teddy Turn from the eastern edge of the subdivision to Duncan Drive and along the western side of Brahms Way adjacent to the subdivision. 4. The City Public Works Department and City Parks and Recreation Department supported the variance request. 5. The Health Department and the OPG Transportation Planning Division did not support the variance request. 6. Potential future subdivision of the tract south of this subdivision would require installation of sidewalks on the east side of Brahms Way and the south side of Teddy Turn. 7. There is no anticipated threat to public health, safety or welfare as a result of approving this variance as proposed. B. The conditions upon which the request for variance are based are unique to the property for which the variance is sought and are not applicable generally to other property. C. Because of the physical surroundings, particular shape, or topographical conditions of the specified property involved, a hardship to the owner will result if the strict letter of these Regulations are enforced. 1. The subdivision regulations require sidewalks on both sides of off-site roads; however, due to the fact that Teddy Turn and Brahms Way form the southern boundary of the subdivision, the regulations result in public improvements not adjacent to lots within the subdivision. 2. The length of Brahms Way is approximately 400 feet. 3. Teddy Turn was recently relocated between Lots 1 & 2 of Papoose Ranch III at a length of approximately 1300 feet from Duncan Drive to its intersection with Brahms Way. 4. There are three homes on the east side of Brahms Way and the south side of Teddy Turn that are served by this 1700-foot length of roadway that would benefit from sidewalk on these sides of the road. 5. There are no sidewalks on Duncan Drive with which to connect. ---PAGE BREAK--- 44 D. The variance will not in any manner violate the provisions of the Missoula City Zoning Ordinance, the Missoula Urban Area Comprehensive Plan, or the master plan for the area. 1. Approval of the variance will not violate the provisions of the Missoula City Zoning Ordinance or the Missoula Urban Area Comprehensive Plan. E. The variance will not cause an increase in public costs. 1. The plat contains an SID / RSID waiver for improvements to Teddy Turn, Duncan Drive and all roads within the subdivision. 2. City Council imposed a condition of approval requiring Brahms Way to be included in the SID / RSID waiver. 3. No increase in public cost is foreseen with the granting of this variance.