Document Missoula_doc_d4be7c50a4

Missoula Consolidated Planning Board December 4, 2007 Page 1 of 65 MISSOULA CONSOLIDATED PLANNING BOARD MINUTES DECEMBER 4, 2007 7:00 PM Missoula City Council Chambers, 140 West Pine Street MEMBERS PRESENT Wayne Chamberlain, Chair Kevin Blackler Jennifer Clary Mark Fitzgerald Tim Ibey Jerry Petasek Paul Sopko ALTERNATES PRESENT Alan Ault Don Latham MEMBERS ABSENT Troy Kurth Don MacArthur STAFF PRESENT Jennie Dixon Mary McCrea Tim Worley Sharon E. Reed OTHERS PRESENT Erik Braun Robin Carey OTHERS PRESENT Catherine Carey Jackie Corday Dianne DeCamp Brian Derry Dave Harmon Laura Jones-Lofink Nick Kaufman Heidi Kendall Harold Hoem Marsha Hoem Sarah McMillan Jessie McQuillan OTHERS PRESENT Brenda McQuillan Frank Muth Franklin R. Muth Deborah Oberbillig Debra Richie Don Snavely Stephen Spraug Harriet Spurlock Larry Stipe Josh Slotnick Bill Weikel Please Note: Written comment and meeting handouts received at this meeting are available for review at the Office of Planning and Grants. Planning Board, City Council and County Commissioners have received copies of the comments for consideration. Photocopies may be obtained from OPG. An administrative fee is required for photocopies. I. ADMINISTRATIVE BUSINESS Wayne Chamberlain: It’s 7:00 p.m.; I will call the December 4, 2007, meeting of the Missoula Consolidated Planning Board to order. II. ROLL CALL Roll call indicated there were 7 members and 2 alternates present. Sharon Reed: You have... Wayne Chamberlain: I hear two. We have enough members that we don’t need the alternates to vote. Sharon Reed: Well your alternates can fill in for Don MacArthur and Troy Kurth. Wayne Chamberlain: Okay, that will work. Sharon Reed: Okay. Wayne Chamberlain: So everyone knows what we are talking about is we have regular members of the Planning Board and we also have alternate members. When regular members are not present, the alternate members can participate in the discussions and vote. If we had everybody here, they could participate in the discussion, but not vote--the alternate members. Just so you know. Yes, please we will have our alternates take Don MacArthur’s place [Alan Ault] and Troy Kurth’s place [Don Latham]. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 3 of 65 81 condominium units on the 6-acre lot. The applicant proposes to rezone the property to B (Residential) to allow the proposed subdivision on the 20-acre tract. Staff has recommended R-12 (Residential) as an alternative to the B (Residential) zoning. Jennie Dixon will be bringing that project to you. We have had quite a few Governing Body Actions: On November 26, 2007 the City Council approved the 2011 – 2027 W. Sussex Rezoning Request and the 2034 Mullan Road Rezoning Request as recommended by Planning Board. On November 26, 2007 the City Council approved Clark Fork Terrace #2 annexation, zoning upon annexation and subdivision request as recommended by Planning Board, except City Council amended Condition No. 15 to clarify the location of the river front trail, include information about trail signage and address maintenance of the trail easement area. And I have provided in the Memo today the exact language of that amendment to Condition 15; and the underlined language is s the language that they added. On December 3, 2007 the City Council approved the 31—I’m sorry; excuse me--3801 Brooks -Town Pump CLB Rezoning request as recommended by Planning Board. On December 3, 2007 the City Council failed to pass motions to annex Sunshine Addition subdivision. Since annexation by City Council was required in order for the Council to consider the rezoning and subdivision request, the motions for rezoning and subdivision were not considered. The developer has granted a 60-day extension to the subdivision review period so that they can consider their options. And that’s all I have for you this evening. Wayne Chamberlain: Thank you, Ms. McCrea. Any questions for Ms. McCrea? Thank you very much. V. PUBLIC HEARINGS A. Subdivision & Rezoning Request – Sonata Park A request from Muth-Hillberry, LLC, to create a 38-lot residential subdivision on 34.08 acres located in the Rattlesnake Valley, west of Duncan Drive, adjacent to Teddy Turn. The property is unzoned, and the applicant is requesting RLD-2 (Residential) zoning of the property. Wayne Chamberlain: This evening we have but one item on the agenda. I assume everyone is here for that. So let me take a second to explain how the process for those who haven’t been here before and for those who have, but it has been awhile, how the hearing will take place. First, we will hear a staff report from Ms. Dixon, who will present her staff report to us. Then we will ask for the representative of the subdivision to speak and make their presentation. Then we will ask any proponents, any additional people who would like to speak in favor of the subdivision to come forward. Please remember that you are to address all of your comments, and questions, and complaints to me, the Chair; and we will deal with them. After the proponents have finished their presentation, we will listen to those who have come to speak in opposition to the subdivision. I understand, Dave do you have a slide show, power point presentation? Okay, we will watch the presentation. Have you prepared the list of people that you want to testify? Okay, then we will just follow your list; but still, if you will give the list to the Secretary so she has that for the minutes, that will be helpful. But, please everyone who comes to the microphone, identify yourself and spell your last name if it is at anyway hard to spell, other than Smith. After everyone has had a chance to speak their piece, we will close the public hearing. We will probably take a break, and the Board will take up the subdivision. And so, don’t just testify and leave because we may actually, we do take notes, and we may actually want to ask questions of everyone who comes to the microphone and speaks. On behalf of the Board, thanks for coming and taking part. We know this is difficult and sometimes takes some courage to stand up to the microphone and say what is on your mind. We appreciate it and we respect you completely. Okay let’s get started. Ms. Dixon…. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 4 of 65 Jennie Dixon: Thank you, as you said this is a public hearing this evening for Sonata Park. It is a zoning request and subdivision located in the Rattlesnake Valley on the west side of the valley considered to be in the middle to upper Rattlesnake portion of the Rattlesnake Valley on the west side of Duncan Drive. I have indicated the site as shown on a Land Use map just to give you the vicinity in the Rattlesnake Valley of this location. This is the old location of Teddy Turn and it has been relocated, and you will see that in later drawings this evening. This is the zoning in the area. The property here consists of approximately 34 acres. The applicant is Muth Hillberry, LLC. And the property is unzoned with adjacent land uses and zoning being residential, some large acreage, and then some smaller acreage to the south and to the east, with Duncan Drive then adjacent to these subdivisions called Papoose Ranch. To the north is Cooney property, approximately 65 acres proposed for the Duncan Meadows Subdivision, which you may be seeing in several months. And then this is 150-foot wide strip of City Open Space that then connects to a larger area up here and a larger area down here in the southwest portion of that map. And then here are some 20-acre parcels zoned C-RR2. That is a County residential zone of two-per-acre owned by the Spurlocks. The majority of this area, shown on this map is unzoned. It was--there was an attempt to zone it in 1995. That was protested both ways in terms of the higher density and the lower density and was failed to be zoned at that time. But the City Open Space is zoned P-1 for Parks and Open Space; and then as you get into further east and across the creek, you have zoning of RLD-2, which is a two-per-acre. It is comparable to that C-RR2 zoning district, right there. Oh, I would mention that I did issue on the blue sheet, a correction to the staff report to clarify that between the creek and Duncan Drive, that land is unzoned, as I just explained. This is the Land Use Plan, specifically kind of close up for this area and for this property. I’ve highlighted or indicated anyway here (since there is no legend) what these patterns are, and the property with this pink shape on it, and so the City Open Space in the green has been designated Parks and Open Space; this blue, dashed or dotted line, let me go back. You can see it a larger, a kind of a broader picture. It is outlining pretty much the north hills and that is indicative of an open space cornerstone. Again, I would just reference you to the blue sheet that, that is one other element that I neglected to include in my Staff Report when I issued it last week and wanted to make sure you were aware that this area is within a, what is called an existing and potential open space cornerstone in the 1995 Urban Area Open Space Plan. And, if I can take a moment and just explain what that means. These designations indicate that the cornerstones may be proposed and approved for development, but any development proposal must contain an appropriate park and open space provisions which address the goal of an Urban Area Open Space System. We have recommended a condition to address that, which I will go into a little bit later in the presentation. The west approximately 300 feet of the property, as well as the eastern side is recommended as a density of one-dwelling unit per 5 to 10 acres. The strip right down the middle here is one-dwelling-unit-per-2-acre designation. Based on the comp plan designations, with the one-per-two encompassing approximately 14.5 acres and the one-per-5 to10 is at about 19.5 acres, that would work to an overall density on the property, based on the comp plan recommendation of about 1-per- acres. The property is 34 acres, so if you did the math it would be about 11 dwelling units, based on the Comp Plan recommendation from 1995. This is the site before the snow. Looking north on Duncan Drive, it shows you the condition of Duncan Drive and its intersection with the realigned Teddy Turn. This is looking northwest to the City parkland that is in Papoose Ranch where Teddy Turn then starts to head toward the west for the property that you can see the sign there on the right hand side, right here, and a fire hydrant has been placed. Continuing on Teddy Turn towards the west, you start to see the City’s Open Space in the background and the Muth residence there on the left. This part of the slide is off the subdivision; it’s Cleaves’ property, and then this over here on the right side is the beginning of the subdivision. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 5 of 65 This is going along Teddy Turn going towards the west, and then turning back around and looking east toward Mt. Jumbo and the Cleaves’ residence; and again, this is off the subdivision, and this is the portion that is on. But I wanted to show you what Teddy Turn looks like currently, and when I get into the section where we discuss roads, you will learn that they are proposing to improve Teddy Turn as well as all roads in the subdivision to meet City Standard of 32 feet wide within a 60-foot right-of-way. In July of 2006, the City passed a resolution expanding the waste water treatment facility area to include not only this property but the properties north and south. That was done as adopted by the City, it was indicated that as an oversight that these properties were left out of the 1999 Waste Water Facilities Plan update and should have included these 592 acres. That was their intention at that time, but it was an oversight; and therefore, a year and a half ago, they did bring these properties into the Waste Water Treatment Facilities Area. That inclusion within that boundary makes this property also included within what’s called the Primary Urban Growth Area, which is--establishes a physical area around the community where growth is encouraged and beyond which growth is limited or discouraged. This is the proposed plat for Sonata Park, and some of the photos I’ve shown you already show you Teddy Turn connecting to Duncan Drive approximately in this location, and then you saw some of the Cleaves’ property here and Teddy Turn and the Muth residence here and in a few minutes I will show you some more slides of the property as it sits on the western side and the north. I also want to draw your attention to the City Park here in Papoose Ranch, which is really a woody draw with riparian vegetation has been acknowledged as a riparian draw that extends east-west across the site; and thus, the proposal for the common area that leaves that corridor open and one of the main issues that we will be discussing tonight. There may be some disagreement between the staff recommendation and the applicant’s proposal [staff recommendation] is to delete these four lots where there is another draw, a spur that comes off the main draw to the south. We will come back this slide or some version of it I have; there is a color version of it in here for discussion purposes if people in the audience or the Board have questions. So this shows you a little bit better with the color, the City Open Space, the 150-foot strip here. This is Yellowstone Pipeline, a high-pressure gas pipeline going through the property, which requires a 50- foot setback on either side from the pipeline of any structure. As I mentioned in the previous slide, this open corridor from the City’s Open Space Park Area that connects to Duncan Drive, and then over to Rattlesnake Creek, and then across this property to the City Open Space, and hopefully, eventually north and south to the Rattlesnake Wilderness Area. Teddy Turn currently exists to include this portion and then turns down a driveway to this home. They are proposing to improve these roads, as I said, to City Standard; and then construct new roads in these locations with cul-de-sacs. I think this is Bach Court, and Mozart, and Beethoven Lane. Beethoven Lane is the one road that does not meet City Standard for road construction, and that’s in the sense of it exceeding maximum length of cul-de-sac by 50-feet. The allowed length of cul-de-sac in the subdivision is 1000-feet and they are at 1050. So they have requested a variance to allow Beethoven Lane to be constructed to that length, the 50 feet extra, and the City Engineer supported that request. The City Fire Department did express concern about length of cul-de-sac increasing their response time; but acknowledged this is a marginal amount of distance; and particularly, given that both this cul-de-sac [points] and this cul-de-sac [points] are temporary or intended to be temporary, to connect to the north to a proposed Duncan Meadows subdivision, ultimately making a loop road in here that they could manage their response time sufficiently with this scenario. Therefore, staff has recommended approval of the variance request. You’ve got four lots on either side here with some common area, and these two red spots here are the only portions of the property on slopes over 25 percent where there is lotted area. There is also slopes over 25 percent here, but it’s in the common area. So they have indicated with the red areas “no-build zones” on those two lots. I actually...I believe this “no-build zone” here is not due to slope, but rather to maintain the 50-foot setback from the pipeline. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 6 of 65 As you can see, in addition to these two, well three cul-de-sacs there are two short courts serving, in this case, one, two three, four maybe five lots. These two lots, though they are in this cluster will not come off the short courts; they will come directly off of Teddy Turn. The short court serving those lots is constructed with a hammerhead and a two-space, overflow parking area. However, this set of lots (35-38) is also proposed for a short court, but is not proposed to have any kind if a turnaround area, and I did confirm with the Fire Department that, that was acceptable to them, given that it was less than 150 feet in length; and they did confirm that. There are two overflow parking spaces as well on these--for these lots in the short court. I would just call your attention, and it will become fairly obvious as we go through this presentation this evening, that these are the four lots that we are recommending to be deleted. The utilities for this subdivision for this subdivision, in particular the sewer, is proposed to...would have gravity mains with a lift station in the Creek Crossing road right-of-way, just to the west of Rattlesnake Creek, so off this picture across Duncan Drive, and a force main would then be installed across Rattlesnake Creek to connect to the existing main at Creekwood Road and the Creek Crossing road. So, the sewer would be coming down Teddy Turn, and then the idea was to bring it through the short court and then down through the common area here, through these lots, adjacent to the City Park, I believe an easement was secured on a lot in Papoose Ranch. And we have, along with recommending deletion of these lots here, we have also recommended that this area be a “no-build zone” because of its quality of riparian vegetation and wildlife habitat; and that would include eliminating that sewer easement from this location and putting it somewhere else, probably Teddy Turn. Let me go back. This dotted or dashed line here is—it represents one of the other staff recommendations that would modify this plat; and that is to set 100 foot buffer on the western edge of the property to separate the development to the City’s Open Space. The land use plan in this area, not only addresses density and land use among a variety of other things, but also establishes goals and objectives. And in this location, the idea of placing the 1-per- 5- to-10 adjacent to the City’s Open Space, if you were to take a scale to that map, that’s about a 300 foot distance for that lower density next to the City’s Open Space and then you have that middle portion, where it’s the higher density, and then when you get over towards the riparian areas and the slopes, you get the lower density again. And so, you’ve got the different designations. This is a 30-foot separation between this cul-de-sac and the Open Space, and we’ve recommended that, at a minimum we are recommending a 100-foot buffer to keep the development away from that Open Space Area, where the plan recommended a greater distance given the design with the corridor here and the significant amounts of open space left with this design, we felt that 100 feet was reasonable here, particularly responding to the development proposal of a cul-de-sac that really, I think is possibly 200 feet longer than it needed to be to serve only one lot; and I tried to make that point in the Staff Report that you could even make minor adjustments to both of these pods, cul-de-sacs, and certainly get the same number of lots. This cul-de-sac could end here, but yet it extended here to serve this one lot, and you could get three lots here on the end and shorten that cul-de-sac quite a bit and stay out of that 100-foot buffer area; and the same here [points]. These lots are in the neighborhood of about 15,000 square feet; and with the proposed zoning of RLD-2, you can have, so long as your density is not exceeded on the parent parcel, you can vary your lot sizes. And so, lot size reduction is certainly a viable answer to accommodating this request or recommendation for that buffer. This shows you an image of the site with an approximation of what that might result in, with this white line being the edge of the City’s Open Space or the boundary between the Open Space and this subdivision; and a recommended 100-foot buffer, with Teddy Turn and then those two pods on either side. This is looking north from Teddy Turn where it would kind of loop around and terminate in the cul- de-sac to the north, with the Cooney property in the background, Mozart Court off to the left, and then Beethoven Lane coming across and up the side of that hill in the open space common area here. This shows you an idea of the master plan for these two subdivisions to connect, that as I ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 7 of 65 reference earlier, the City Fire Department had their concerns alleviated by viewing this potential looped connection for the subdivision. This is a photograph looking northeast from where Teddy Turn and Brahms Court intersect and gives you an idea of the quality and the size and location of the draw that runs east/west across the property, the type of vegetation, and as you get over here, it’s technically City Parkland; but it all functions as one kind of ecosystem for habitat as well as corridor for wildlife. And the common area there in the foreground. The homes on Beethoven Lane coming up over here on this side and probably this is an area where some of those short court lots may be located. It wasn’t staked so it was a little hard to tell, so that’s my best guess. This is looking the other way, looking west, that shows you that shows you that east/west draw. Before, you were looking the other way toward Lincoln Hills and Mt. Jumbo. This is looking west toward the City’s Open Space, and this shows you how the southern draw comes off of that to where lots 35 through 38 would be located in the proposed—the applicant’s proposal for which staff ahs recommended deletion. And that shows you there is kind of a cluster or a clump of vegetation that based on field investigation by staff, we have determined that to qualify, based on the City Regulations, as riparian vegetation and are recommending as riparian vegetation or simply as wildlife habitat, that that area should remain. There’s plenty of room on the property to accommodate the lots and don’t need to disturb this area to accommodate lots since there is flexibility in lot size so staff is recommended deleting the lots in this area. And that just shows you on the plat where that is. And this is a map out of the City Zoning. There is what you would call, I think, a floating City Zone that indicates general locations of where you might expect to find riparian vegetation. This is that main east/west draw. You can see that City Parkland there where it’s heaviest, and then the southern spur that comes off where the clump of vegetation is generally in this location. These maps were made, not by site investigation on each individual property, but rather looking at air photos and the best analysis of information that we had at the time. And this, I believe, was back in the mid-90s. And so, it’s something that you use, that when you see that there is some of this green, that’s indicative of potential riparian vegetation and then you go out and do a more in-depth analysis and determine if it’s riparian. And in this situation, we did determine it to be, which is in contrast to the applicant’s assertion that, while there may be some riparian vegetation on the site, it is not in this location; and that is why they have proposed the four lots in that location. I didn’t get all the photos I wanted when it was nice and sunny, so I made a trip out and took this photo from the upper Lincoln Hills Drive area. You can see Brookside here in the foreground, the Rattlesnake Creek Corridor here, and that would be, I believe, the Cleaves’ home or residence on the Cleaves’ property, and this line here are the shrubs that line Teddy Turn. And so, this is that main east/west draw riparian area; and, I believe this would be that clump of vegetation on that southern draw. It kind of shows you, it’s certainly smaller, but appears to be of the same kind of character. I will show you where the subdivision is relative to that. And here, it was such a cloudy day I had to draw the horizon line in, in white, so you could distinguish between the ground and the clouds. The black line is what, based on the fence lines, I could determine to be the boundary between the City Open Space and the subdivision. This is to give you a sense of visibility from across the valley at the bottom of Lincoln Hills Drive. The two homes there are kind of my indicators of orienting me to where I am at, and then the Spurlock property in the background, which of course is currently vacant. This is a protest map, which this project is going to public hearing at City Council next week with potential action the following week on the 17th [December], and do in advance of those meetings, we try to determine if there is a protest, a statutory protest that would require a supermajority of the City Council to approve. And a lot of people will get confused by that, thinking that, If I am not in that area, I can’t write a letter, or does my protest count or not. And so I have tried to explain to people who have e-mailed me, and I would like to present this evening what the protest...Property ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 8 of 65 owners in the protest area are shown in the tan color, and actually also include these two properties, as well as this; but with the overlaying of the colors, the tan went away. If 25 percent of the properties within the tan area write a letter in opposition to the zoning request, that triggers the supermajority vote of Council to approve it. So far, of the 13 properties, we have received 2 letters in opposition. In order to trigger that supermajority vote, the official protest, we would require four letters in that tan area. We have also received, in this mapped area, three—actually, I’m sorry, four other letters, one from Spurlock, which was neutral, essentially neutral, and then three other letter in opposition, but are not within that 150-foot protest area. So short story is, there is no official protest as of yet. We have certainly more time and that remains to be seen. So this is the last slide and I would just finish up my staff report based on this and use this as reference where I may need to give you clarification. The applicant has proposed RLD-2 zoning on these 34 acres, and with the 38-Lot proposal that density is about 1.12 dwelling units per acre. RLD-2 allows two dwelling units per acre. So on this property they could get 68 dwelling units; however, the City has a Hillside Standard that requires density to be adjusted on certain slope categories. With the Hillside Standards and RLD-2 zoning, the property could have 53 dwelling units which is still 15 more than they are proposing. Based on all the findings in the staff report and our analysis of this proposal, we have recommended condition approval of the requested zoning of RDL-2 with the condition that a PUD Overlay also be applied that would limit the development of this subdivision to one dwelling unit per acre. That seems like a convoluted way perhaps to get to one dwelling unit per acre because we have RLD-1, which is one per acre in the City, but with the hillside density reduction application in both subdivision and zoning, it became impossible to implement that. So, the only way to get to the density that they are asking for in this basic configuration is with the subdivision proposal and a density established in a PUD Overlay. That one-per-acre accounts for staff’s recommendation for eliminating these four lots. The…let me…the proposed PUD is shown in Attachment D and establishes the height as outlined in RLD-2, that setbacks are per RLD-2; however, with lot adjustments here where they may reduce lots significantly in size. If they reduce lots to less than 10,000 square feet, then they would be subject to RLD-4 standards which instead of 25, 25, 15½, I think it is 20 or 15...it is 20, 20, 7½ , so not a huge reduction but would I think encourage it, the possibility of maybe a diversity of lot sizes or smaller lot sizes as they might have to adjust this plat. The General Standards in this PUD in Section VI, well I am sorry, in Section IV as shown as VI, it should be Section IV, it says: Section 19.67.030(A)(1) It should also include: and shall not apply in this PUD. That section what this is excluding from this PUD is the application of the hillside density reduction that I just explained. The whole reason for doing this PUD is so that if this subdivision is approved, what you approve is this and not something that is then manipulated further through the zoning hillside regulations. So, if you are inclined to make a motion this evening for approval, I would ask that one correction to include Section and I have already talked about the first variance which is the length of Beethoven Lane. The second variance is to installing sidewalks on the off-site, the opposite side of the off-site roads. That includes Brahms Way and Teddy Turn, here and here, where it is adjacent to the subdivision. So the requirement in the regs is to install boulevard sidewalks on all off-site roads on both sides. We recommended that the applicant be allowed to install sidewalk on only one side of those roads, on their side so to speak, was directly adjacent to their subdivision. The findings for that are at the back of the report that I would like to just go through just a few of them. Public Works and Parks and Recreation supported that variance request; however, Heath Department and OPG Transportation Planning Division did not. So, looking at the facts of the situation and the criteria and given some of the diverse opinions in City agencies, we looked at the fact that Brahms Way is about 400 feet, and Teddy Turn, I believe, all the way out to Duncan Drive ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 9 of 65 is about 1300 feet. So that 1700 feet of road way serves three homes. To install sidewalk on both sides for those three homes for that length did seem to be a hardship and unnecessary in this situation. Where, if and when this property--this 31-acre property develops, then sidewalk would be required by them. And to have this subdivider install it for both did not make sense in this situation. Along with the applicant’s proposal to improve where Teddy Turn, where it’s not required to be improved, and that would be from the east side of the subdivision all the way out to Duncan Drive with a 32-foot-wide road within a 60-foot easement, curb and gutter, and boulevard sidewalk on the north side. Okay…The applicant has proposed all roads as private roads in this subdivision to remain as they are, as private roads. The City Engineer and the Transportation Planners have recommended that all roads within the subdivision with the exception of the two short courts be public roads. That includes the off-site portion of Brahms Way and Teddy Turn, as well as the portion of Teddy Turn not directly adjacent to the property. So a Condition of Approval requires that all of those roads except for the short courts be designated as public roadway. The plat contains an RSID waiver for the roads. There is a condition with a slight correct there. But that RSID waiver could then be used for--to apply to all roads that are public. We also recommended a 1-foot “no-access” strip along all of the corner lots on Teddy Turn. So, for example: this lot, this lot, this lot and this lot; wherever there is a road of lower classification to have a “no-access” strip so that those lots do not access on Teddy Turn. The drainage system for this proposed subdivision was, the Health Department concluded that is was appropriate as it uses surface infiltration and detention in a ponding area here on the eastern side of the property. The problem with this location however, is that it may, I believe, it is going to interfere and possibly remove some of the riparian vegetation that the regulations state...that should not be removed. So, we do have a condition that the location of the detention area must be approved by Parks and Rec so as not to conflict with...or to insure that no existing native trees and shrubs are removed from this area [and] also so that any pond area does not conflict with a recommended public pedestrian access easement that would extend from the City Park to the City open space through the common area. That 20-foot ped easement is a recommended Condition of Approval supported certainly by this office and Public Works, excuse me, Public...Parks and Recreation Department. Then of course curb and gutter will also help to manage the drainage. The site will be served by City sewer, Mountain Water as indicated. And the park dedication requirement for this subdivision is 1.48 acres and to meet that requirement the subdivider is proposing 15.73 acres of common area. Our recommendation to delete these lots, of course, have nothing to do with acquiring additional lands as protection of the resources on the site that we have identified as being important to preserve and to meet City Regulations. The applicant included RWI standards in their covenants and also having the looped road, if and when that does happen, will help meet the concerns of… It won’t provide two access points out to Duncan Drive, but it will make circulation a bit better for fire hazard. I think what I would just like to finish up with, let me double check is, a little bit more discussion about what the requirements are regarding the riparian regulations. So I am going to go back a few pages or slides. There are riparian regulations in both the zoning and the subdivision; and the regulations are intended that areas of riparian resource remain available to support diversity and provide aquatic and terrestrial riparian systems and habitats and for the protection of water quality and to protect woody draws, which this area is. The Master Parks Plan has two relevant policies regarding riparian areas that resulted in our recommendation to take these four lots out of this area. Those two goals are to preserve wildlife ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 10 of 65 corridors and area of high quality and natural vegetation and the second point would be to avoid environmentally sensitive areas when locating a development. The, so to conform with those regulations we did recommend not only deletion of those lots, but also preparation of a Riparian Management Plan for these areas and to designate those as a “no-build/no-disturbance” areas. The site is at the south eastern most edge of elk winter range however, Fish, Wildlife and Parks does not expect the subdivision to cause problems for the elk; because most of the elk use the areas north and west and up slope of the proposed development. Of course there is abundant wildlife in this area; and black bears and mountain lions are known to pass through the site and will probably continue to do so. And that draw and those riparian areas of wildlife habitat area are very important to continue and allow this proposed development as we recommended for approval to hopefully coexist peacefully with the wildlife in the area. The…I did leave additional public comment that I received on your desk this evening and I made copies that are out on the table. The attachments to the staff report A through D, I think the public comment is in Attachment C, and there were maybe four letters and unfortunately after the issuance of the staff report and I am grateful to all the people who contacted me. They let me know that they had submitted a letter and they were wondering where their comment was. I think that some of the letters I just missed getting from the City Clerk, and so I collected everything that was submitted to the City and that is on your desks this evening in the white papers. There is about, maybe 10 additional letters in here, all collated for you. Then I have indicated the corrections to the staff report. And then finally, a new comment from Fish, Wildlife and Parks on the yellow [paper] which isn’t really much of a new comment, it is reaffirming their old comment, but I wanted to make sure that you were aware that they hadn’t forgotten about the subdivision and felt the same as they did a year ago when they commented. I appreciate the time you have given me this evening to present this. Staff is recommending approval of the rezoning request with a PUD Overlay, approval of the two variances and approval of the subdivision with, I believe, 31 Conditions of Approval. Thank you. Wayne Chamberlain: Thank you Ms. Dixon. Developers’ representatives...Mr. Kaufman. Nick Kaufman: Mr. Chamberlain, for the record, my name is Nick Kaufman. I am a land use planner with the engineering firm of WGM here in Missoula and appearing before you tonight on behalf of Frank Muth and Max Hillberry, the owners of the land proposed for the Sonata Subdivision. I am going to have to take a moment and plug the screen into this computer. With me tonight are Don Snavely, who is the client’s attorney; Mr. Bill Weikel, who is a registered professional engineer and will discuss the geology of the site; and Laura Jones Lofink, who is an environmental scientist in our office, who will discuss the riparian area. So if you will give me just a moment, I will try to bring the technology up. Wayne Chamberlain: You bet. Nick Kaufman: And so the first thing I would like to talk to you tonight about is that there is some disagreement between the developer and the property owners in the neighborhood. I want to talk to you a minute about the basis of that agreement, and then I will ask Don Snavely to come up. This property used to be in Missoula County; it all used to be zoned two-dwelling-units per acre. There is 34 acres here, and you can do the math as easy as I can. At the time it was in Missoula County, negotiations were entered into with the then property owner, Sunlight Development Company, with the City and County. What you see in the right hand slide, open space lands were acquired by the City, development rights were bought down, and the remaining property that remained in Sunlight Development Company had on their part an expectation to achieve a certain level of development. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 11 of 65 The successors in interest then to Sunlight Development Company were left with an expectation, over here. You can agree with it, or you can disagree with it; but they were left with an expectation after dealing with the governing bodies, and I respect that. On the other hand, the neighbors who live in the area, and I have the utmost respect for the neighbors that live in that area; and their representatives and their attorney have as much expectation. Because since the time of County zoning, since the time of the acquisition of the open space, right, the governing body has gone through some iterations of neighborhood planning, leaving us with a much different expectation and Ms. Dixon showed you that. So, both people relying on their interactions with governing bodies come away with much different expectations. We come before you tonight with that being the primary difference and it revolves around one term and that is density. So before I continue my presentation I would like Don Snavely to come up and just talk to you for a moment about how the developer’s expectation came about. Don Snavely: Thank you. My name is Don Snavely, spelled S-N-A-V-E-L-Y, I represent the developer Muth-Hillberry LLC, and a lot of the comments you will hear from the neighbors revolves around the Comprehensive Plan, the 1995 plan. Basically, as best I can tell, they want to take that plan in a vacuum and ignore the historical context of that plan. So I want to give you a little bit of that historical context. Sunlight owned this land which consisted of 939 acres, and that’s the drawing on the left up there with the tan highlighting. That’s the situation that existed in 1989. Now in 1975 the Urban Plan allocated 2500 units for that property, which is 2.6 units per acre. That was the Comp Plan in 1975. In 1976 the County came in and allocated 1900 units or 2 units per acre for that property. That’s the situation that was faced in 1989 when Sunlight approached the City; 2 units per acre, I should say approached the City and Sunlight got together. Now what was the City looking for in 1989. It wanted to build the Rattlesnake interceptor, sewer interceptor. It needed money to do that, which Sunlight had. It also wanted to have the potential to acquire vast amounts of open space in the area and be able to limit the density on the other grounds. What came out of that negotiation was an agreement called the 1989 Agreement that allocated 2625 units to the property of Sunlight. but gave the City the option to acquire back 1625 of those units and 346 acres. It also gave the City several hundred dollars for the Rattlesnake inceptor which they needed. Now, the City exercised the option in 1991 and acquired 346 acres of open space shown in green on the right. That was made possible by Sunlight’s commitment in 1989. It also got the sewer interceptor; and when it got done, it left Sunlight with 592 acres now and 346 acres of open space and an allocation of about 1.7 units per acres; which was less than the County zoning. So Sunlight gave up a lot. As Nick said, “what did it get?” It got expectations of the density it would be able to have on the remaining lands that we are talking about today. Now, despite this background and considerable negotiations going on to get to this point that allowed the City to acquire 346 acres of open space and hundreds of thousands of dollars for the Rattlesnake Sewer Interceptor, the Comp Plan comes along and basically ignores that agreement. Now, granted the Comp Plan is considering the whole Rattlesnake Valley, but it basically...The group that worked the comp plan basically considered that, for whatever reason, irrelevant to the process. Now, what it does is basically increase the zoning, the density according to Jennie Dixon to 1.3 acres; which is totally out of context with anything historical with this area. It’s inconsistent with the Urban Plan in ’75, it is inconsistent with County zoning, and it is inconsistent with ’89 agreement. Now for whatever reason that was done, now, the opponents come and say, well the agreement is irrelevant and so what they are saying is essentially Sunlight, and as a result my clients who bought from Sunlight, received absolutely nothing for the commitments. They gave up the right to develop 346 acres; they gave up a bunch of money for sewer development rights that they can’t use. Mind ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 12 of 65 you, the comp plan calls for 11 units, we have 17 drainfield rights. We don’t need the sewer to develop 11 units. So we got absolutely nothing for the money we put up for the sewer, and the City got the open space and the Rattlesnake Interceptor. It is contrary to all good sense to say that we can just ignore the agreement. If you want to ignore the agreement then I suggest we should go back to 1989, give the open space back to Sunlight and those people, do away with the Rattlesnake interceptor, and now let’s talk about zoning the land. I am not trying to be facetious; the point is that is not going to happen. My point is you can’t ignore the history and you can’t [inaudible] the comp plan and just ignore this agreement. There were substantial concessions made for the area. At a minimum when you are considering density, you have to consider this 346 acres. It is open space; it is reducing the density of the remaining units. Now the City Attorney basically says that the agreement really only set maximums on density. Well, I don’t want to get into all the details legally, but the agreement is replete with language talking about density units and density rights. It doesn’t say density limits. The City Attorney’s opinions would basically make the agreement not an agreement, but a gift. We would get nothing and we gave up tremendous open space and money for the sewer. So we think that, and by the way, the comp plan is, as you are aware, is intended to be a factor in these decisions not controlling--it can’t be controlling in zoning decisions. It is a factor to be considered. The comp plan we are dealing with, by its own terms in 1995, says that most of it is valid for 10 years. It has outlived its usefulness. Most importantly it ignored what happened before. It wanted to take a clean slate when a clean slate didn’t exist. It should have gone back and said, “well let’s look at the situation in ’89 and now do a comprehensive plan and consider all the open space we’ve got. So... Sharon Reed: ...excuse me, I’m going to change the tape, I am sorry. Okay, you can go ahead. Don Snavely: Thank you. And I will wrap up quickly here. It wants to ignore all that happened in the past and all that was given up; and I don’t think legally they can do that. I think you just can’t ignore this agreement; and while I agree with Mr. Nugent, on one thing, it doesn’t create an absolute, unequivocal right to these amounts of density units. It certainly is a very large factor in the equation. An absence of other very good reasons, the density units should be honored. Now, we aren’t using all the density units, as Jennie, I think as the staff plan points out. We are using about 70 percent of them. We have made…my clients have made considerable concessions. They started out, they were guaranteed 60 units, I should say 54 remaining units. We are now down to 38 and under the…it would be 34 under the staff’s proposal. So, substantial concessions have been made and we are not exercising all these rights. We think that an agreement cannot be ignored. Thank you. Wayne Chamberlain: Thank you, Mr. Snavely. Nick Kaufman: And so what Don just talked... Wayne Chamberlain: Excuse me, Mr. Kaufman, is your microphone on? Nick Kaufman: No., Mr. Chamberlain, it was not, thank you. I sound better, don’t I. So, this is the Rattlesnake Valley, the general area; and this is the location of the proposed subdivision. If we look at Sonata Park and what’s gone into the design, there is a couple of things I want to reiterate from what you’ve heard from the staff report. This is not the top of the ridge, by any means. The top of the ridge is way over here. This is the Spurlock property line and this property is zoned C-RR2, two dwelling units per acre in Missoula County, right here. This is inside the 201 service area. This is the park in the Papoose Subdivisions and these are the lots in the Papoose Subdivision. There is just over 34 acres in this subdivision. Is someone else talking…I am picking up static, it is sort of bothering me a little bit here. In fact I lost my place. We have about 34 acres in the ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 13 of 65 subdivision and about, just over 15 acres are in common areas. So, just under half of the site is in common area, trying to focus that common area along the City Open Space in this location. This is one of the preliminary proposals that are not before you tonight, that showed the subdivision with 52 lots, a proposal with 49 lots, a proposal with 41 lots. This one, if the projector worked better, you would see the connectivity to the Cooney Subdivision to the north, but I think one of OPG’s slides showed that very well. I will come back this one and what I would like to do now, if you will bear with me with the technology again, is I would like to show you a Google Earth illustration that places the property in context with the topography and the Rattlesnake Valley. Sharon Reed: Nick, I need you to use the microphone, please. Nick Kauffman: This is the Rattlesnake Valley and this is the location of the proposed Sonata Park. Come in a little closer and you can start to see the topographic areas. This is the 100-foot strip, this is the top of the ridge where the trail is, this is the Spurlock boundary here. We are well over the top of the ridge. I’ll just rotate around here a little bit. Then we will take a look at this from Coal Mine Road, over by Browning Ferris Industries. This is a good shot of what Lincoln Hills across the Rattlesnake looks like. As we tip this up and take a look at it the subdivision disappears over the ridge because the Spurlock property actually continues over the top of this ridge. Back looking at Lincoln Hills, we will rotate; once again this is the top of the ridge. We will come over and take a look at what you see if you are on this side of the Rattlesnake at Lincoln Hills. We are a little high in this picture, but it gives you a good shot of the property and where it is located. We will come back up in the Upper Rattlesnake Valley and notice that the site disappears in the view shed in the Upper Part of the Rattlesnake where the Rattlesnake Wilderness is. We will come back around and land in a good spot to look at the subdivision. So, in the Office of Planning and Grants slides, it was hard to see in the perspective and let me zoom out just a touch for us; that this is the top of the ridge. I think when you start to take two- dimension photography and look across, you get the impression this is very close to the top of the ridge and it is not. The top of the ridge is here. All of this property is owned by Harriet Spurlock and zoned two-per-acre in Missoula County. This property is all inside the 201 Waste Water Service area and will be served by public sewer and water. The Cooney property comes up and across like this and this is all that City Open Space property in this location. This is the large draw that OPG staff was discussing right here and here are the four lots in question. I will just zoom in on those a little bit. There are some things I want to show you in this slide because it is important. We will stay here. This is a…I forget which tools I am using here, bear with me. Okay, this is the main east/west draw that was discussed in the staff report. This is that side draw that comes from the Cleaves’ property. You can see it quite well in this location right here; Ponderosa pine with some Hawthorne vegetation. I will ask Laura Jones- Lofink to come up in a moment and talk about the riparian issues. These are large lots, over 15,000 square feet. But there is a concern on the part of staff about building in here. We certainly can put building on these lots to stay away from the particular drainage ways in this subdivision. If you look at the letter from Fish, Wildlife and Parks, we have accommodated all of their concerns with regard to this subdivision, including the 150-foot wide strip down the draw and that is confirmed in the correspondence you have in front of you today on the yellow piece of paper. I would be happy to read that for you if you would like. If you have got it there in front of you it says, “We were not able to submit a second letter on this subdivision. But upon review of the redesigned plat proposal received by us in August 2007, we note that our recommendations on the wildlife covenants and are later dated January 2007 have been incorporated in the revised plan. We also note that the revised plat appears to address our recommendation that the west/east common area natural drainage feature could be made more functional and wildlife friendly if it were widened to at least 150-feet throughout.” So, we’ve met Fish, Wildlife and Parks recommendations and concerns. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 14 of 65 We would like to keep those four lots. There are several ways you can deal with these: ¾ You can leave the lots as they are. ¾ You can propose building envelopes to address the concerns raised by OPG. ¾ You can allow us to redesign the subdivision and recover these four lots in another part of the subdivision. There is a fourth option, you can allow us to plat these lots and buy condition of the subdivision require us to make them available as a bargain sale to the City of Missoula at a much reduced price from market value. Which would be a benefit to the developer in terms of offsetting capital gains from the subdivision and allowing this to become a piece of park. What we would do is include this piece here so that it would actually be a piece of City Park here and with Papoose Park adjoining it, I will just go out a little bit here. So, actually this piece of Papoose Park that could then become City Park up into this area under that option. So there is a number of ways to deal with that. Before I finish up I would just like to go through the staff report for just a moment and talk about just a couple of the conditions. We concur with all the conditions in the staff report. If you want to turn to the exhibit which the PUD Zoning Exhibit; if you leave the PUD at a density of one dwelling unit per one acre, with 34 acres in the subdivision, we can do 35 lots. That will not allow us to take those four lots and reincorporate them into the subdivision. If your preference is that we reincorporate those lots in other locations in the subdivision, we would need a density of one dwelling unit per .89 acres. One dwelling unit per .89 acres would allow for the 38 dwelling units. On Condition No. 7 drainage…while we are sympathetic to the staff’s concern in No. 7, we would like the language changed to: “the drainage detention pond shall be constructed and a location approved by the City Engineer.” The City Engineer is more congruent with storm drainage issues and plans than the City Parks and Recreation Department. And then you read Condition Nos. 22, 23 and 24 and after tonight’s presentation, you concur with Office of Planning and Grants, that those four lots are really in riparian areas you can leave these conditions intact. If you agree with Laura Jones Lofink that it is not riparian, then you should reconsider applying Condition Nos. 22, 23 and 24. We concur with the findings of fact in the staff report, relative with the subdivision with those few exceptions, find the staff report acceptable. With that I would like to introduce Laura-Jones Lofink to talk about the riparian issues. Thank you Board, very much for your time. Wayne Chamberlain: Thank you, Mr. Kaufman. Laura Jones Lofink: I am with WGM Group. Sharon Reed: I am still not picking you up. Wayne Chamberlain: Could you state spell your name. Laura Jones Lofink: J-O-N-E-S- LO-F-I-N-K . I completed a site investigation of the area in question for lot 35. Sharon Reed: I am not picking anything up, sorry. Laura Jones-Lofink: I completed a site investigation of the area in question for Lots 35-38, and my investigation concluded that the vegetation in that woody draw constitutes upland succulent Hawthorne community type. While not a riparian area there’s not much evidence of hydrology out there. The site has been dry every time I’ve been out there. Typical riparian vegetation included Hawthorne, but the other dominant vegetation in the under story is typical of upland communities including Houndstongue, which is a noxious week, quack grass, Oregon Grape, Snowberry and Kentucky bluegrass. Page 359 of the Classification and Management of Montana’s Riparian Wetland Sites, which is the key that the City uses to classify the riparian areas states that, “not all ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 15 of 65 sites dominated by succulent Hawthorne is considered wetland or riparian. In some instances they are considered Upland. I believe this is an instance where the community is an Upland vegetation community. The area that has currently been designated as a common area really encompasses the type of nature of the vegetative communities that we want to protect, instead of the area of the isolated cluster of Hawthorne trees that’s within the area of Lots 35-38. Thank you. Wayne Chamberlain: Thank you. Nick Kaufman: Thank you Laura. And Mr. Chairman, our last presenter will be Mr. Bill Weikel. Bill would you come up please. Bill will address the site geology. Bill Weikel: Good evening. My name is Bill Weikel and I am a soils engineer with GMT Consultants. I previously prepared a hillside report for this proposed subdivision at the request of WGM group, which is included, I believe in the submittal package and I have been asked to speak here tonight by the property owners to respond to issues raised by Mr. W. I. Van der Poel in a letter to the city council members You will have to excuse me, I don’t have quite the polished presence that Mr. Kaufman has and so I am going to tend more to read what I have spent considerable part of today putting together to where I can have continuity. In Mr. Van der Poel’s letter he raised primarily 2 issues; that the planned development is in an area that previous geological studies have recognized as being a large Quaternary age land slide and that it falls along the Clark Fork Fault. In a previous letter to the council in 1993, Mr. Van der Poel, responding to a report by Jay Crawford, one of my predecessors at GMT, raised the same issues, along with the character of the soil on the site being prohibitive to infiltration of effluent in the drain fields that were proposed, and that recent slope failures within a few miles of this area, showed that failures occurred at shallower angles than Mr. Crawford used in his lope stability analysis. These are the issues that I will address tonight. I will admit to not having the education and experience in geology that Mr. Van der Poel has. My education is as a civil engineer and I have spent a 35 year career involved as a surveyor and as an engineer on construction projects including the past 13 years as a soils engineer. I take my responsibilities as an engineer very seriously, so when I read Mr. Van der Poels letter last Friday, I became very concerned that I had missed what was an obviously a potential problem. I appreciate that Mr. Van der Poel has brought this land formation to our attention so that not only must we address it, but I was also able to further my understanding of geology by having to satisfy myself that the conditions that allowed the material to slide will not be recreated by development. After reading the letter, I first obtained the two publications cited. The first “Geology of the Bonner Quadrangle by Nelson and Dobell in 1961 briefly addressed the reported slide area by outlining an area exceeding 1 square mile on their included map as being landslide debris, and stating in the text that the deposit is composed of jumbled unsorted mixtures of soil and rock fragments, and was outlined by the characteristic topography as seen on aerial photographs. I’ll see if I can point to the area that they describe here. I believe they come here along, roughly along the bottom of the subdivision, all along the base of the hill here even to the right side of Duncan Drive up to, I believe, somewhere in the vicinity of the substation, back along the toes of this area up in here. Somewhere over into here and back down on into this. As I say, roughly a square mile area. They didn’t give any of the information about the reason for the slide or if there was potential for future sliding. The second publication which was Mr. Van der Poel’s from 1974 goes into more detail on the character of the slide and makes some of the same cautionary statements that he has made in his letters; but, provides very little information as to the reason for the slide. He does, however, state and I quote, “Strand lines from Glacial Lake Missoula appear to have been erased on the upper portion of the slide while they are preserved on slopes nearby. Other strandlines are etched on the toe of the slide, indicating failure occurred between two stands of the Glacial Lake. It is a reasonable expectation that saturation by lake water may have been a factor in the sliding”. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 16 of 65 After I reviewed the documents, I viewed the site on aerial photography, looked at the site from dozens of different angles on Google Earth, and made several trips to the site and the hill across the Rattlesnake Valley to obtain a sense for what the site looked like and to try to imagine how and why the soil had been moved. After all of my research, I came to the conclusion that there was a large area of land that included the proposed subdivision that at some point in geologic time had experienced a massive soil failure. Although I agree with the existence of the massive slide, I do not agree that portions of the slide can be reactivated by activities related to the planned development. As an engineer I was educated in analyzing how forces interact. Slides occur when the forces that are trying to fail a slope exceed the forces that are resisting the failure. In general, once a slope has failed, the soil mass is in equilibrium and the soil that failed is not reactivated as a new slide, unless significant changes in forces occur. A prime example of this is the slide that created Hebgen Lake in 1959 outside of Yellowstone Park. A rock dam on the hillside broke and 40 million cubic yards of material blocked the Madison River Canyon in a matter of minutes impounding Hebgen Lake to a depth of 170 feet. This material has remained stable for almost 50 years while retaining a significant amount of water. When I looked at the reported slide debris area on photographs, Google and on the ground, I recognized that if even ½ of the 1 square mile area was slide debris and extended at least 20 feet below the surface, the amount of material that had moved was huge, exceeding 10 million cubic yards. This amount of material had to come from somewhere so I visualized that the ridge shown near the middle of section 3, may have extended a significant distance to the south. The ridge that I speak of is right in here, it is a little hard to see on this perspective but there is the end of a ridge that extends on up to the north and it drops right in this area. The elevation drops from somewhere in here down into here by I believe possibly a couple hundred feet. Excuse me a moment, could you bring that down, bring it down below, bring it down so it can be magnified. Go to the north so that you keep the subdivision, now you have to back out a little bit now. Thee you go, that’s okay. That is about the best we are going to get, I think… Anyhow I visualized that this material must have come from some formation possibly in this whole area and ended up down in this whole area. As suggested by Mr. Van der Poel, I visualized that the majority of the slide had occurred during the time of Glacial Lake Missoula, either under the lake when the soil became saturated or as the lake drained quickly and the hydraulic forces were greater inside than outside of the soil mass. Since it was the first time that the soil had been saturated, most of the slide likely occurred at one time in a short period of time. The result was a very flat mudflow that extended over a large area of land. As I stated all the way down into here from possibly up, this far up. Which is, I believe, this length here is about a mile. Based on the area outlined by Nelson and Dobell and from the appearance of the aerial photography that some of the slide material went down both sides of the ridge between the Rattlesnake Valley and the basin to the west. The slide most likely occurred during the first full pond or first draining of Glacier Lake Missoula. During subsequent fillings, the soil did not appreciably move, other than at the head of the slide area since it had already achieved equilibrium. Later fillings of the lake provided a huge load on the top of the soil formations that compressed them to the degree that makes them so difficult to excavate today and makes them prohibitive to infiltration in drainfields. At the head end of the slide area, numerous small slides are visible that were likely caused by later fillings of the lake or by steepened slopes that were left after the lake was gone. We don’t quite have the magnification; maybe you can bring it in right here, Nick. As I say, I don’t have a background in geology but I have been around this kind of stuff for years. I visualize all these little formations are some sort of a slide failure. These are up at that upper, against that upper hill that I talked about to begin with, which was the upper limit of the slide mass. These may have occurred subsequent to the mass failure of all the rest of the area. When mentioning the Clark Fork Fault, I am not certain if Mr. Van der Poel is using this as a possible reason why the conditions existed that caused the slide or if he is alluding to a possibility of the fault reactivating. However, I believe reactivating is not an issue since according to the Nelson and Dobell publication movement in the fault took place only as recent as middle of the tertiary time which would be 35 million years ago. Maybe if you can go back in just a second again, or excuse me, out. I believe, he is ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 17 of 65 running now…I believe that on the geologic maps the Clark Fork fault is defined as somewhere along here, it goes over somewhere on the ridge of Mt. Jumbo, along here and continues on to the west. In his 1993 letter, Mr. Vander Poel suggested that drainfields being proposed in a subdivision being proposed for this same site would fail because the soils would not accept the drain field effluent. Now in the latest letter, he states that a leaking water or sewer line could saturate a clay rich layer at a depth of 10s of feet or deeper beneath the surface and reactivate an ancient land slide. To me realistically, a leaking water line or sewer line would supply a very small amount of water compared to the amount of water that annually falls on the proposed development site as precipitation. Based on 15 inches of annual precipitation, approximately 13 million gallons of water falls on the site annually, and during a 1 inch event, 900 thousand gallons would fall on the site. In contrast, a totally severed water main in the subdivision could put out 1000 gallons a minute, which in the hour that it might take Mountain Water to get the main shut off would result in 600,000 gallons, most of which, due to pressure would blow out the top of the water line trench and flow on the ground surface. Small leaks would likely saturate the soil in the excavation trenches and manifest as surface settling rather than being absorbed into deep clay rich soils. Mr. Van der Poel also mentions changes in loading possibly activating slide material. When you look at the overall weight of a house on the size of the lots in the proposed subdivision, the net weight gain on a lot is in the range of 5 to 10 pounds per square foot over the whole lot or less than the equivalent of 1 inch of soil spread across the lot. This is less than 1/10 of 1 percent increase in loading on a possible slide formation that is at a depth of 20 feet. I do not feel this will be a significant enough load change to come anywhere near activating any ancient slide material. In his 1993 letter, Mr. Van der Poel mentioned slope failures in the vicinity without giving any specifics. I would assume that he is primarily referring to the slide on the east side of Grant Creek a short distance north of I-90. Mr. Van der Poel collaborated with Mr. Jay Crawford of GMT in 1992 to study this particular slide. The basic conclusion of the cause of failure was that there had been an ancient slide at the site which had stopped on the top of sand and gravel deposits along the base of the hill and when the sand and gravel deposits were removed in a mining operation, the slide was reactivated. I have also studied this slide in the past few years and when a developer asked if I could make recommendations on how to prevent additional failure, I informed him that I was not interested in being involved is such a risky and possibly volatile project. In conclusion, I believe the slide mass that underlies this proposed development moved during the time period of Glacial Lake Missoula and that there is nothing that would take place during or after development of the site that could come anywhere near recreating the effect of Glacial Lake Missoula. Therefore, I do not feel there is potential for slides on this planned development. Thank you for your time. Wayne Chamberlain: Thank you Mr. Weikel. Bill Weikel: Weikel. Wayne Chamberlain: Got that right…Mr. Kaufman, is that it. Nick Kaufman: Yes, Mr. Chamberlain and members of the Board. Thank you, very much. Wayne Chamberlain: Thank you Mr. Kaufman. Let’s take about a 10 minute break and we’ll come back for the opposite, oh, excuse me, I am sorry. Are there any other proponents that would like to speak at this time? Let’s do all the proponents and then we will take a break. Anyone else who would like to speak in favor of this subdivision? Okay, let’s take 10 minutes. Wayne Chamberlain: We will call the meeting back to order and hear from the opponents. Mr. Harmon. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 18 of 65 Dave Harmon: Mr. Chamberlain, Planning Board members and staff, my name is Dave Harmon. I’ve lived at 3500 Duncan Drive for the past 16 years. I am currently the President of the North Duncan Drive Neighborhood Association. Pictured there, up there is a herd of elk, what we consider in our neighborhood just north of the end of Duncan Drive. I need to ask you to stop just a second if you would and re-think how you might approach your task this evening. The staff and developer have presented a subdivision that on the surface looks neighborhood friendly, you know there is some open space, there is a trail, maybe we will take out four lots. But the 600 pound gorilla is exactly what Nick said. It is density. That’s what this is about. The density issue is very complicated. It seems to me your choice is pretty simple. You can take guidance from the developer’s attorney or you can take it from the City Attorney and they are diametrically opposed. The soil issue that you just heard about is complicated. You can take guidance from the developer’s civil engineer or you can take guidance from a PhD Geologist. Rather than spending this evening nickel and diming a lot here and there, you could consider denial of the subdivision for the reasons I hope to explain in our presentation. So I am just asking you to be open to that concept, please. All of the following photos you’ll see were taken in our neighborhood. The following presentation serves as our groups’ public testimony on both the rezoning and the subdivision. Thirdly our neighborhood is rural in character, it is next to a wilderness recreation area , it is currently unzoned and substantially complies with the Rattlesnake Valley Comprehensive Plan. This is a picture just looking south and east towards Mr. Jumbo from our neighborhood. We define our neighborhood as the area north of Mountain View and west of Rattlesnake Creek. We built homes or moved here with confidence that the comprehensive plan, since there was no zoning in place, that the comprehensive plan would conserve the semi-rural character of this neighborhood. We want to let you know that this isn’t all we are working on. The Duncan Meadow Subdivision that you’ve heard, we’ve also been concerned with. Just so you know if that comes in the way the developer has proposed there is a strong likely our neighborhood group will support that subdivision because it is at a density that we think is close to what the comprehensive plan is. We are not anti- development. We are also working on a zoning proposal to zone our entire neighborhood and we are working on the revision that is going on with the Rattlesnake Valley Comprehensive Plan. As I said, we are not anti-development. Our group formed in response to two huge subdivision proposals. We support development in compliance with the comprehensive plan. We clearly stated during seven mediation session, this took place this summer at the insistence of the Mayor, and tried to work out some of these problems. We met seven times. I don’t think we made, on this particular subdivision I don’t think we made much progress, but we said a number of times we would support the subdivision with density matching the comprehensive plan. From my perspective 38 units is a long ways form 10. Our neighborhood association is involved because we genuinely care about our neighborhoods’ character and our obligation to preserve the finer points of our community for generations still to come. This is the new footbridge up at the end of Duncan Drive. It helps connect our neighborhood to the Rattlesnake Wilderness and Recreation Area. It also puts a lot more bicyclists and pedestrians on Duncan Drive. We oppose Sonata Park and its related rezone because the subdivision is a gross distortion of decisions to maintain the semi-rural area as adopted in the growth plan/comp plan. We also oppose it because of pedestrian/bicycle safety. Duncan Drive has no bike lanes, no curb or sidewalk. Increasing traffic by two or three times, if you include Duncan Meadow Subdivision, will surely increase the hazards on an already dangerous road. The new foot bridge, as I said is increasing bike and pedestrian traffic already. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 19 of 65 Zoning the property at RLD-2, two units per acre would set precedence for a suburban density for our entire neighborhood. This is something we are really concerned about is what happens here is going to happen to the rest of the neighborhood and I am not sure whether you can take that into account in your deliberations; but, nonetheless it’s reality. The elk herd will no longer graze behind John Heffernan’s and Brian Sankey’s house. Barking dogs and stalking cats will surely have a negative effect on birds and this important grassland habitat. The badger that is digging holes in my pasture now will find it difficult if not deadly to cross Duncan in pursuit of its prey. Fire is an issue for us, more homes means more chance of ignition. Also we have a limited egress out of this place and it poses serious threat to our public safety. The application we found incomplete, incorrect and confusing, thereby severely hindering the public’s ability to provide informed comment. We will have more on this later. This was a scene of a recent bicycle accident; you will note the lack of a bicycle path there. This proposed development is on its face deficient prompting up to respectfully request you apply the law and deny both the rezone and the subdivision application. Both State and City law say that projects such as this one shall substantially comply with the comprehensive plan, this project is not even close to compliance; a fact acknowledged in the staff report. The law says that homes cannot be built in riparian areas. This project proposed four homes over the top of a well know riparian area. There has been a lot of talk about that already, I am not sure why we are talking about it now since there was a letter on January 23rd and again on August 23rd asking that these places be removed…these units be removed. Thirdly the law says that you shall deny subdivisions that attempt to locate on lands where there is evidence of hazards to include swelling soil, landslides, high potential for wildfire. The property contains all of these hazards plus some. The law goes further to say that you shall not approve a subdivision until an engineering design study to mitigate all of these hazards is approved by the governing body. No such mitigation study is before you. Therefore, you are legally obligated to deny these applications. We will have more later on the soil. In addition there is a well documented fault line near the property that is not mitigated by any announced design standard as required by law. We will just show this slide to show that there is a variety of wildlife in this area that goes unseen to much of the public. We have already talked a bunch about the riparian area, Nick showed you that map. This photo was taken up by Robin Peter;’s home that would have been here tonight but recently had a back operation. I just want to summarize a vast majority of our neighborhood strongly opposes this thoughtless, California-style subdivision smack in the middle of one of Rattlesnake Valleys most accessible public use corridors. There is no question that this decision tonight is not simply about this subdivision; it is about the future of this valuable recreation interface as a legacy for future generations. This proposed subdivision does not quack like the comp plan, does not look like it or walk like it there it cannot possibly be substantial in compliance with the comp plan. The proposed subdivision has several legal deficiencies that enjoin the Board’s ability to approve. The speakers that will be following me will be providing more facts and testimony to support our belief that you cannot legally approve the application for either the subdivision or the request to rezone. Thank you for your attention. Wayne Chamberlain: Thank you, Mr. Harmon. Ms. McMillan. Sarah McMillan: Good evening Chairman and members. For the record my name is Sarah McMillian, I am with Western Environmental Law Centers, and I represent the North Duncan Drive Neighborhood Association. Let’s see if I can figure this out….I will try not to yell at you. The North Duncan Drive Neighborhood Association is a group of neighbors that lives in the area, ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 20 of 65 that’s proposed for subdivision. It is not opposed, I think as Dave says, not opposed to any and all development, they are opposed to this particular development because it is not consistent with the character of the neighborhood and it does not substantially comply with the relevant planning documents. Here, the proposal is a zoning request that would allow 53 units on a piece of property that has been very clearly identified in both the comp plan and the Rattlesnake Amendment as appropriate for fewer than 12 units. They also oppose the, group also opposes the subdivision as being deficient because it lacks essential pieces and fails to acknowledge and address significant issues. At the outside I would like to emphasis that it is essential to look at development proposals in the proper context, which is that subdivision development is a privilege. There is no inherent right to develop your property. Indeed, the legislature has very clear given the City the authority, in §76-3-608, and other statutes, to decide if and what kind of developments will be allowed, in light of the relevant statutes, regulations, and planning documents. So I would like to start by talking about the zoning request and our position that it zoning request does not substantially comply with the growth policy and its incorporated documents. So to start with it’s §76-1-605, §76-2-304 and the City’s own Zoning Rgulation,19.72.040, that require the substantial compliance with the planning documents. The Comp Plan itself also reminds us that “In all cases, [the Plan is] to be seriously weighed in the decision-making process.” The relevant planning documents at issue here are the County Growth Policy, which was updated in 2005, and incorporates all of the following: Missoula Urban Comprehensive Plan, the Rattlesnake Amendment, the Open Space Plan, and the Rattlesnake Overlay Zone and the Master Parks and Recreation Plan as well. And I would just like to say that the City and this Board and staff have contributed hundreds of hours of effort to development these plans, and they just can’t be tossed aside and ignored when a developer comes along and decides they want to put in 38 instead of 12 units on an area that has been very carefully evaluated. I’d like to talk first of all about this Sunlight Agreement. I think it is really important to understand that these planning documents are what govern here, not the Sunlight Agreement, nor the resolution 7119 which discusses the, whatever it is called, the Wastewater Facility Service Area. Those don’t trump the planning documents here. I think it is important to understand that there is a 1991 Sunlight Agreement that hasn’t been discussed tonight, but that incorporates the ’89 Agreement and was developed, and you probably all have it in your packet, was developed and entered into by the very same parties as the ’89 Sunlight Agreement. There is a provision in it that specifically says, it is on page 1, subpart D, “Sunlight acknowledges that density rights are governed by the applicable comprehensive plan, zoning, the subdivision review process, covenants and similar used land processes, laws, rules and regulations. So in that agreement Sunlight acknowledged that it is the comprehensive plan that controls here, not its agreement; 20 years ago or 16 years ago I guess, with the City regarding sewer development rights. I think it is also important to understand that the City is not forfeited its right nor its duty to carefully evaluate each and every subdivision proposal. They didn’t do that when they entered into agreement in ’89, they didn’t do it in 1991 when they entered into an agreement that really deals with sewer. So, §76-2-304 provides that zoning regulation must be made in accordance with the Growth Policy and must be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses. In the case at hand, it is clear that the rezoning request does not substantially comply with the development plan form in the relevant planning documents, and it is not compatible with the character of the area. It also runs afoul of some of the identified goals, objectives and guiding principles in all of these several plans that I mentioned earlier, and I just wanted to provide you with a few examples that are in addition to the specific density identified in the Rattlesnake Amendment and the comp plan. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 21 of 65 The vision statement of the ’98 Comp Plan says that one of the goals is to protect our critical lands and natural resources such as wildlife habitat, riparian resources, hillsides, air and water quality, and open spaces. The first guiding principle of that comp plan is that “our physical environment forms a continuum ranging from natural wilderness to densely populated urban landscape.” The Comp Plan then recommends for the City, this is a quote, this is on page 90, it’s Appendix A of the 98 Plan. “In areas... And I also have copies of this that I can hand out to you all. “In areas designated as suitable for development, the City is to identify what types and level of a development are suitable...” And then the Comp Plan says, we may employ development guidelines and other tools to protect hillsides, riparian areas, wildlife habitat, and air and water quality. The Rattlesnake Amendment then goes on to implement that comp plan recommendation by adopting a neighborhood character and quality of life policy that the city will “encourage location of higher density, residential development in the southern portion of the Rattlesnake Valley.’ And that “All subdivision zoning and rezoning requests should substantially comply with the land use recommendations of this plan.” That’s at page 25 and references Map 13, which is the same as the map in the Comp Plan identifying the units for the area as 1 unit per 2 acres and a combination of 1 unit per 2 and 1 unit per 5-10 acres. The Rattlesnake Amendment also recommends the City insure “development should be at a scale that is compatible with the development patterns of existing Rattlesnake neighborhoods and the natural ecosystem which underlies and surrounds the entire study area.” And then the Growth Policy echoes that same intent and says that we shall preserve the diversity, integrity and unique values of neighborhoods. That’s at page 3-3 of the Growth Policy. Additionally, both the applicant and the staff have recognized that this area is in a Wildland Residential Interface, which seems to suggest that there is a recognition that this is on the, sort of the outer edges of where our development is occurring. The Open Space Plan also identifies this area as one of Missoula’s cornerstone open spaces with high-priority lands that have high value open spaces that should be protected, and there’s a map atlases I believe Jennie showed you all, and that cornerstone is not just what is currently protected land, but includes a portion of this...the land that is proposed for subdivision here tonight. And the Open Space Plan expresses, “A strong preference for protecting our scenic hillsides” that’s page 33, and it also names as a goal to preserve scenic viewpoints and viewsheds, to protect visual reminders of geologic history, to spatially define the shape of our growing community in a way that honors its significant landforms and natural features.” That’s page 6. I can keep going, but I am sure I am boring you guys. The point is that there are any number of provisions in five separate plans that talk about the need to protect our hillsides, protect our natural resources, to ensure that development that occurs is going to be in concert and consistent with the character that is already in a developed neighborhood. And then I would just like to point out, the Rattlesnake Valley Plan District Overlay Zone is intended to provide supplementary regulations to protect the character of the area, to encourage sensitive development in the existing developed neighborhoods, to allow development that complement settlement pattern and existing land use and protects and enhances that natural and visual character of the City. And I would say that 76-2-304 tasks this Board with making a recommendation to the City Council after considering that this zoning proposal doesn’t comply with the Growth Policy and its several incorporated documents, is inconsistent with the character of the neighborhood which contains larger parcels of land, it has the PEAS Farm, it has llamas, it has Rattlesnake Creek, and it has City Open Space. Nor is this development the most appropriate use of land as 76-2-304 also talks about when considered in light of the area, the natural environment, and the particular location of this land as a part of a gateway to the Rattlesnake Recreational Wilderness Area and adjacent to or very near the cornerstone Open Space of the North Hills there. The zoning request also fails to satisfy several other elements in 19.72.040. It doesn’t give reasonable consideration to the character of the area as required by that regulation. It is not compatible with particular suitability. It will not lessen congestion on the streets, nor is there fire ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 22 of 65 safety. The concern first of all, it will substantially increase traffic, as Dave pointed out, on the upper end of a dead end road with narrow shoulders and a blind curve where there is already pedestrian and cyclist safety issues. Furthermore, to satisfy the Fire Department’s concerns about placing houses at the upper end of a cul-de-sac, the satisfaction of that concern is that, well there is going to be development later on, so then it won’t be a cul-de-sac anymore. And I think on this note, I really would like to stress that it is disturbing to me that the fire safety...that the Fire Department‘s safety concerns are resolved by saying, well there is going to be development later on by a different landowner that will fix the problem. Not only does that put the potential residents at risk until that development happens, but it also pre-supposes that that development will happen. And I think it’s essential that we have an unbiased review. And if the safety of half of the residents of Sonata Park relies on the approval of the Duncan Meadows subdivision, I think that’s a problem; and I think it suggests a bias that you all as decision makers, or at least as recommenders to the decision makers, you’ll want to provide safety for those Sonata Park residents. And I think that is a fairly serious concern and not an appropriate way to resolve the Fire Department safety concerns. And then I just wanted to talk very briefly about the subdivision application itself, and some recognized deficiencies. And Subdivision Regulation 4-4...4-3(4)(a) and require that the application comply with the subdivision statutes and regulations and applicable zoning regulations. And the regulations here provide that where there are riparian resources, either on the property or adjacent to it, the application must include a Management Plan for those areas; and while there may be a contention that those four lots 35 through 38 are not a riparian resource area, there is a recognition that the other draw, the east-west draw is a riparian resource, and yet, no Resource Management Plan was submitted with this application. And the conditional...the suggestion by staff that this be recommended for approval and then the management, the Riparian Resource Management Plan be developed at a later date, again, is this...you approve preliminary plat and then you let them figure out how to deal with it. Well I think the point is first of all the regulations says it must be submitted with the application, and the point is to allow you all and the public to review that management plan and evaluate whether it will be adequate to protect the resources on the land. And another issue that has already been addressed somewhat is Mr. Van der Poel’s letter in which he identifies that there are slope stability and seismic issues on the property. Those were neither identified nor pursuant to Subdivision Regs. 3-1(2) was any sort of engineering or professional analysis and design mitigation submitted to deal with those issues. So I just want to say that you have land here that’s on a hillside, that’s the gateway to the Rattlesnake Recreation and Wilderness Area, that is in the Wildland Residential Interface, that has been envisioned by the City and its citizens for a number of years as being appropriate for less dense development. It’s part of that continuum that the Comp Plan talks about from dense urban development in the southern part of the Rattlesnake Valley to the less dense, more rural development that should occur as we head towards the outer edges of the Rattlesnake Valley. So I would ask that you recommend the City recognize the substantial efforts that have been put into the Plan and be guided by those and follow those recommendations in all of the various plans. And what else, I know, I had another note that I wanted to make and I am a little bit confused by part of the recommendation from staff to have a PUD Overlay, and my understanding is that PUD has to be by application from the applicant, and I haven’t seen that, and I think the citizens then have an opportunity to respond to that. And I don’t have much experience with that, but that’s what I got when I looked at the regulations. And so, I am not sure how this would be applied at this point, at this stage of the development. Finally, I just want to say that I think the historical context of the Rattlesnake Plan as Mr. Snavely noted, is the Sunlight Agreement, both of them and the provision ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 23 of 65 that says the Comp Plan controls, and I don’t believe the City could give away that. That’s a statutory provision that says the Comp Plan controls, not a private agreement between the parties, and the agreement itself recognizes that. I guess one final note, again, responding just briefly to Mr. Snavely’s comments is that the Rattlesnake Plan is the plan; that’ all there is for that area. The 2005 Growth Policy update incorporates that again. It’s not if it’s outdate the solution, according to the Montana Supreme Court, is to amend it not to ignore it. So we ask that you pay attention to it and be guided by it. Thank you. Wayne Chamberlain: Thank you, Sarah. Mr. Derry, please. Brian Derry: My name is Brian Derry, D E R R Y. I would like to address two issues of great concern to us. These concerns are of such consequence and seriousness that we believe after considering these you should not approve the Sonata Park rezone proposal or the subdivision proposal before you. The two areas of concern are the incompleteness of the developer’s application, and the assertion in the staff report that this development is appropriate for zoning RLD-2. The incompleteness of the application has resulted in serious abridgment of the public’s right to comment. The staff report reaches a conclusion which in our opinion is not supported by the facts. Incomplete Subdivision Applications: 1. Soils: In section 1, D-4 (page 5) the developer states that “this site contains no land areas with the potential for land sliding or slope instability.” As stated in a letter from geologist W.I. Van der Poel dated 11/29/07 (Appendix of staff report) this statement is inaccurate. There is no expert report in the application, so the public did not have opportunity to comment on this issue. 2. Seismic Activity: There is no indication on submitted plats of areas of seismic activity as required by City subdivision regulations. See Mr. Van der Poe’s letter cited above. Again the public had no opportunity to comment on this issue since it is absent from the application. 3. Riparian Management Plan: Section 1,D-20 (page 7) response is N/A and then proceeded to locate 4 dwelling units in one of the riparian areas. No management plan is available for the public to comment on. 4. Comprehensive Plan Compliance. Section II, A-24 (Page 8) does not “describe how the proposal complies with the applicable Comp Plan.” It is silent on the subject. Again the public has had no opportunity to respond to the developer’s explanation since there is none. 5. Fire Prevention: Section II, B-4-c-a in the subdivision application page 12. The response to describe any proposed grass, brush, or forest fire prevention and control measures is N/A—not applicable. The fire on Mount Jumbo in the summer of 2006 as well as the fires this summer is a reminder of how critical this issue and yet there is no comment in the application for the public to have the opportunity to comment on. Lastly, private access easement, which is Section I (D)17 page 7. Copies of the easement to provide legal access across private property. Developers response is to refer to an attachment section 11 in the overall application, private road easement Teddy Turn. The information provided refers to a private driveway which is south of where Teddy Turn is shown on sheet on the preliminary plat of Sonata Park, which is dated 8/2/02, which is in section two of the packet. The copies of the easements for Teddy Turn intersection with Duncan Drive are missing from the submission. In addition, another drawing in the maps drawing section, section two, labeled “zoning exhibit” which is dated 9/ 22/06, shows the Teddy Turn location as the private driveway versus where Teddy Turn is shown in the preliminary plat. This has led to a bit of confusion by me until I ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 24 of 65 researched it as to what the application is all about. And that has been the final issue of the serious deficiencies and inaccuracies in the application and we believe should be grounds in and of themselves to deny approval. The second area of serious and grave concern to us is the staff zoning recommendation. In the developers application for the rezone the following statement is made: “The site is currently unzoned, the 1989 agreement with the City of Missoula includes density rights of approximately 2 dwelling units per acre for this property.” In staff’s findings of facts, the above density right assertion is not addressed at all. However, the fact is this assertion was not supported at all by the findings of the City Attorney. Attorney Nugent, in his opinion dated 2/1/07, this opinion stated that this agreement granted sewer loading rights, not density rights. In the staff report of findings of fact, which is section V of the report, pages 9 through 14, the assertion is made, in item 14, which is on page 10, that the property is inside the primary urban growth area. With respect, I do not agree with the conclusion for the following reasons: the 1999 wastewater facility plan update specifically excluded the properties proposed for development and therefore not be included in the sewer service boundary area. Since the property in this area were not—were not—in the designated urban growth area. This is the 1999 wastewater facility treatment plan. The developer through attorney petitioned the city for this property and another property to the north to be included in the sewer service boundary area. City staff last summer, in July, actually they did the work in the spring, analysis concluded that these properties had the actual right to be served by the wastewater treatment facility. The decision to be made was whether to make a special exception to allow connection without being identified in the sewer service boundary area. Staff recommendation was to change the sewer service boundary area because it was not a good precedent, in their opinion, to allow exceptions. The public works committee and city council concurred in resolution 7119 was passed. There was no discussion whatsoever in public record on urban growth area density in these deliberations. Nothing. Zero. It was all about being able to get into the wastewater treatment plant. To conclude, as staff did, that the intent of the resolution was to designate this area as prime urban growth area is incorrect in our opinion. I call your attention to items in the findings of fact, again, pages 9 through 14 in the staff report that find that this proposal is not consistent with growth policy, not consistent with compatibility with land use in the vicinity of the subdivision or the comp plan items 8, 20, 21, 40, and 41. Even if one were to accept this version that this area is in a designated urban growth area we do not believe that this one argument could or should prompt the many documents representing hundreds of hours of work and deliberation that support this area being developed consistent with the Rattlesnake Comprehensive Plan. I very much appreciate your attention. Wayne Chamberlain: Thank you very much, sir. Robin Carey? Robin Carey: Mr. Chairman, Board Members, my name is Robin Carey, C-A-R-E-Y. I live at 3525 Duncan Drive. A number of things I had to say have been covered; but what I would like to do is reiterate specifically the inadequacies of the application in terms of slope stability and soils. And so I welcomed Bill Weikel’s testimony here tonight. It’s the first serious discussion of soils that has come about during this application process. However, I disagree with him and I’m sure Mr. Van der Poel would disagree with him if he had the chance to rebut. Anyway, I’d like to follow a paper trail here, just to make the point that this is an inadequate application. It starts with Article 3, Subdivision Design Standards on page 18, the Section 3-1 General Standards, which has already been up on the screen there during Dave’s presentation, which talks about hazards and the need to address hazards and negate for hazards in all applications. And I would like to say that this is not just referring to massive soil slumps that will wipe out schools and homes that’s an issue; but also there’s a section here that has the features that might be harmful to the health, safety, and welfare of the present and future inhabitants which suggests to me that this is not limited to massive slides. We’re talking about people who come up here to buy a lot—do they have to do their own soil analysis? Do they have to do their own ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 25 of 65 engineering of their homes for small slumps, small slides, shifts, those kinds of things? I think not. I think the intent of the subdivision design standards is for full disclosure. And it is clear that this is on the shoulders of the developers to fully disclose that these are unstable soils and that there are problems up here. So the city then, after this subdivision design standard developed major subdivision application, which appears to be designed to compel compliance with this article. There are questions in here, which, as you all know, the developer responds to. So we’ve already had read the one response to the slope stability report that the site contains no land areas with the potential for land sliding or slope instability. You’ve had Mr. Van der Poel’s letter that says ain’t so. I would just remind you that Mr. Van der Poel is an objective, independent citizen who writes this without retainer, without any motivation other than doing the right thing in terms of his neighborhood. I would also point out to you a map I have here. I have included it in a letter I wrote to you. That comes from a Masters’ Thesis done in 1993. it was titled something like “Potential Conflicts Between Soil Types and Development in the Rattlesnake Valley.” It shows almost this entire area is in poor…rated poor in terms of slope stability, suitability ranks. Now, the person who wrote this had a Masters’ Degree, but she had a full committee of people, University Professors with PhDs, all of whom who signed off of this, said this is correct, this whole area is subject to slopes instability. Now, another question in the application calls for soils, map and tables. It says on a plat overlay or a sketch map provides the following information concerning soils. One, soil types; two, limitation rating, slight, moderate, severe for each soil type; physical properties of each soil type, materials and liquid limit and plasticity index; any special design methods planned to overcome the above limitations. The response is (from the developer) a soil map and accompanying documentation are included in this packet. So I turned to the appendix, where this referred document exists and here we have it: you have some downloads from USDA National Resources Conservation Service and they say in terms of engineering properties, not rated, not rated, not rated, not rated, not rated, not rated… there’s no information on this sheet. We’re only told that these are site type 8 soils. The same is true on the next page of this packet. Physical soil properties: not rated, not rated, not rated, not rated, not rated, blank, blank, blank. There’s no information here whatsoever. We also have dwellings and small commercial buildings suitability: not rated, not rated, not rated, not rated, not rated. The only information that you have in this soils packet is that these are type 8 soils. So, I’m not a geologist; my daughter’s a geologist so I guess that don’t count, but I can go on the Internet like anybody else, so I looked up these soils. Basically, what we’re talking about is fine sediment, plate deposits that settled out from Lake Missoula. It’s clay that expands, it’s clay that gets heavy when it gets wet, it’s clay that gets slippery, it’s what we in Montana know as gumbo. That’s what we have up there. When it gets wet, it gets slippery, when it gets heavy, it slides. It’s unstable, it’s going to cause a lot of problems to individual homeowners up there and it also does have the potential for massive slide. Again, as I said, I can go on the Internet like anybody else. I looked up some things about sloping areas in general. This is from an environmental impact statement that was done in Washington and this is a general statement about slope instability. Sloping ground has an inherent risk of instability. The risk typically increases when ongoing or historic landsite activity has occurred. As Mr. Weikel has explained to you very nicely, this is true of this area, it’s been demonstrated on the map he put up there. This is an area of historic slope and landslide, that’s why it’s a bowl. That’s basically what happened: the sides gave way, creating this bowl area up here. Landslides are natural occurring phenomena, although the risk of landslide can be increased as a result of land use practices or development activity. And that’s the point: if you put a lot of roads and a lot of houses up there, you’re disturbing the area. The less houses…the fewer houses, the less road-building, the less chance of disturbing the area, the less chance there is of putting more water in to the clays and you get less of a problem. So I think…again, here is the map taken from that study. This one is drainage suitability. Shows ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 26 of 65 the same area, totally in the area poor…rated poor in terms of...on a scale of poor, marginal and good. All of this area is rated poor in terms of drainage suitability. This, again, signed off by the entire committee overseeing this report. So, I think there is at least room for doubt. You’ve heard two opposing opinions. I think in the case of room for doubt, it’s incumbent upon the developer to provide all those things that I read off to you. Statements about the type of soil, their capacities for building and so forth. You did not get that in any of these reports. We only get it now from Bill, here, but you do get it from a different point of view here in Mr. Van der Poel’s letter, the Masters Thesis I cited, and that other environmental statement that I mentioned. The last piece of the paper trail is simply the OPG report. There is no mention whatsoever of soil except in one place on Page 16 under agricultural where it says the soils on the property are classified as 8 and it gives the names of those number 8 type soils and it says according to the Missoula County farmland classification table, these soil types are farmland soils of local importance. Well, you don’t go to the Missoula County farmland classification if you’re concerned about the safety of soils. So this is really not a comment on the safety of soils or slopes, it’s a comment about whether this is agricultural soil that is being taken away from agricultural uses. So, in total, this is a very inadequate application in terms of soils. It doesn’t give (as Brian says) it doesn’t give private citizens their rights to really analyze what is going on here. And, again, it basically provides…it gives a pig in a poke of these lots when people come up to buy there. The assumption would be that these have been looked at and they are suitable for building. Thank you. Wayne Chamberlain: Thank you, Mr. Carey. Harold? Harold Hoem: Mr. Chair [inaudible] Wayne Chamberlain: Okay. Josh? Josh Slotnick: Hello. My name is Josh Slotnick. I live at 3507 South 7th West, which, if you know your geography is a long way from the upper Rattlesnake. I’m here not representing myself as a resident of the Target Range area, but because I work for Garden City Harvest. Garden City Harvest is a local non-profit which leases the PEAS Farm, which is directly below the area we’re talking about…from the City…subleases this land from the City who then leases the land from the school district. I’m here because Garden City Harvest is in the process of attempting to buy the PEAS Farm from the school district. The PEAS Farmland is unzoned. The comp plan calls for that land to be put to public use. I’m concerned because the land we’re talking about here today is also unzoned and the proposal, the proposed subdivision goes against the comp plan. I’m concerned that you will set a precedent by approving this that will then dramatically increase the value of the land that Garden City Harvest is attempting to buy. Garden City Harvest is a nonprofit that grows food for low income people. We provide the food bank with tens of thousands of pounds of food and educational opportunities for hundreds of school children and university students. I’m here only expressing concern that you disregard the comp plan. I hope that you don’t. Thanks. Wayne Chamberlain: Thank you Mr. Slotnick. Harold Hoem: Mr. Chairman, my name is Harold Hoem, H-O-E-M. I wanted to talk tonight about fire. And especially as it pertains to this development. My first experience with wildland grassland fire came when I was 11 years old when my cousin and I decided to help my aunt and uncle out by doing our own little control burn in their pasture. Luckily, the house survived, we survived, and we learned something. You can’t get much closer to fire than swinging a wet gunny sack. Since that time, I’ve gone on to spend six years…parts of those six years with the Forest Service, various types of things: lookout tower, fire guard, fire mapmaking, and three years with the Smokejumpers here in Missoula not too many years after the Mann Gulch fire. And that fire, of course, is big in all ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 27 of 65 of our minds, has been for years. And catastrophic fires have been around for as long as fire has existed and will continue to be around. We’ve had our own examples here: Friday in Missoula very recent. And I’ve kept up with fires…fire control through the years. My wife and I published a Climate Change Newsletter for several years and as part of that I got to tour the Skalkaho fires and of course there’s probably a few skeptics out there but believe me, things are getting drier, they’re getting warmer. We have only to look at last years fires: the Black Cat and the Chippy Creek Fire, Jocko Fire by Seeley Lake, which I was fortunate enough to fly over afterwards and I was there one week before the fire started, but I didn’t do it. We were protecting a look out tower and actually the work we did saved that lookout tower—it was just two miles from Seeley Lake. But you get quite a respect for fire when you observe or when you’ve had to outrun it, which I’ve had. And we’ve had to call in more smokejumpers, slurry, all that stuff, because things can get out of control in a hurry. And I won't belabor this point anymore except that how much effort was put into this application in addressing the Wildland Urban Interface as it pertains to fire. Not very much, I’m afraid, I’m a bit disappointed. A very cursory comments, actually, regarding it in the findings of fact that you can see under the fire department there. They basically said well, their covenants are addressing the concerns. They didn’t spell them out, didn’t say a thing. Specifically consider the site that Sonata Park and Duncan Meadows is going to occupy, if they’re approved. Thanks very much, Nick, for showing those great Google slides, I wish I had them myself because they very aptly address an issue there. One of the things that firefighters don’t like to see are chimneys, gullies, saddles. This site has them all and it’s surrounded by them. To the west, to the south, to the north, to the east: gullies. It sits in the saddle, and the significance of that is the prevailing winds tend to prevail from the west. But they can also run right up from the south, straight up Rattlesnake Valley. And as we seen in the Frenchtown Fires that thing started clear up by Evaro. And pretty soon it was burning downhill, it was supposed to burn uphill. Well, that’s grassland for you, very dangerous conditions. And I’ve fought those kind of fires in the Salmon River in Idaho and in Washington State and in Montana. And we’re surrounded by fuels up there, you’ve got the wilderness to the north, the forest directly to the south and you’ve got all that grassland and for those of you who are maybe watching the fire in Big Timber this year in late fall with snow on the ground. The fire just dries out incredibly fast, a couple of hours. And there you’ve got a very flammable, volatile mix. And then you add the wind to it. No one has mentioned wind in this application and how windy it is where this site is. It’s incredibly windy, wind gets exhilarated over saddles, going up chimneys, and anyone who lives up there will attest to how windy this is. And yet this is not addressed by the fire department. We were concerned about this in the Rattlesnake when we were doing our update to the comp plan, that we’re trying to do now and we’re meeting with the Fire Department to see if we can’t get some tougher standards up there because we don’t want to return to the Black Cat right in our area. And that thing was headed our way from valleys away. If it would have gotten away, if the wind would have just persisted just a little longer, we might have been looking at that fire in the Rattlesnake. Ignition points: the more house you got, the more ignition points. There’s also a concern when you’ve got a rule of power poles, because they will attract lightening, another ignition source. I was concerned when I saw what they were trying to do with the setbacks and they are sort of doing a patchwork quilt here in this PUD Overlay, some things with the setbacks that are appropriate for RLD-2, and some with RLD-4 which are 7.5 feet, 7.5 feet, okay. Here a lot of the documents the Fire Department will give you if you ask them for it. I spent some time at the legislature this year trying to work, working with a working group trying to improve our subdivision laws, a consensus bill that unfortunately didn’t meet consensus and failed; but during that time, sat in on two sessions with the head of the DNRC, who is very, very concerned about Wildland Interface thing. It is getting expensive, comes out of the general fund, hits all of us ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 28 of 65 right in the pocket book. And here is a little handout the DNRC hands out, what are you suppose to look for here. Okay, the key is reducing the ignition potential of your house, that means make it compatible with it’s surroundings by considering these factors: Fuels, I have discussed fuels, mainly grass up there, but also natural and ornamental fuels with landscaping; topography, slope, canyons and draws. Thanks to the Google presentation you saw all of those. Okay your home, construction design and materials, again a very cursory attention paid to that, I believe in this application. Access, roads and bridges. I wasn’t please as a former firefighter to see this situation you have up here. Then you are going to add Duncan Meadows on to it, okay so it’s a loop and not so much of a cul-de-sac; but you only got one way in and one way out and that’s basically a no no. And I don’t know how they can do it, but they really have to address that and they really in my opinion haven’t done a very good job. Plus you’ve only got Duncan Drive, for getting people in, for getting people out. Family protection, the last thing on the DNRC list, evacuation plans. That is not address in this application whatsoever, and I’m concerned, I really am. I think the Fire Department, they are a very good Fire Department here. They have lots of experience and there is lots of experience in the fire field here in Missoula. The one thing that you see in almost all their documents, they talk of a defensible area of 30 feet. The setbacks that they mention for RLD-4, 7.5 feet; do the math, add them up, that is 15 feet between structures. RLD-2, 15 foot setback 30 feet, so these are things that really need to be considered, because if anyone ever walked down the streets of Chicago, or Minnesota, or New York, you know what a canyon wind feels like. When the wind howls down through those tall buildings, you get the same effect when you’re in just any housing area. Between houses, the wind accelerates through there, so I am concerned about setbacks. It is all addressed in here, 30 feet defensible area. That 30 feet is not just an arbitrary figure; somebody decided, there is a fellow by the name of Cohen, I believe that works here in Missoula. He came up with it by empirical testing. That is the minimum. if slopes occur you need more defensible area. I do think that it’s a big help if they get that 100-foot buffer, but you still have to look between the buildings, what kind of space you have, defensible space. It’s been addressed that these are rural cul-de-sac, 1000 feet rural. Okay. That’s the character up there folks. Rural. And a very wise guy by the name of Ed McMann that now works for Urban Land Institute used to work for the Conservation Fund said that all development boils down to: where do you put it, how do you arrange it, and what does it look like. I always think back to that because he’s basically right. And this is rural area, and you’ve got a development that frankly, I think can do a lot better by simply reducing a few of the houses instead of trying to shoehorn a number... to make things fit to a number. Why have short courts up in rural areas? I simply don’t understand it. How does it look like? And as I mentioned, we are trying to work proactively with our Fire Department and the DNRC to come up with some better standards, stronger standards, for Wildland Urban Interface areas. They are hazard areas, and I think they need to be better addressed in this application. And the Fire Department has indicated that they are really willing to work with the citizens to come up with some stronger standards. So, thank you very much. Wayne Chamberlain: Thank you, Mr. Hoem. Just one second, I happened to notice that it is ten to ten. This looks like one of our midnight sessions. We’re...After every one is done, there’ll be plenty of opportunity for rebuttal and surrebuttal and we will explain that before we begin. Mr. Kaufman, did you have something outside of that. Nick Kaufman: There’s a lot of....For the record, Nick Kaufman, there is a lot of valuable testimony coming in tonight. And I see the back of...most of the time I see the back of Mr. Hoem. But he held up some publications I would love to have. As people come up and testify, I wish they would slow down just a moment and make sure they give us those references, so we can get copies of the materials they are placing before you, I think to our benefit, also. So I don’t know what those publications were. I don’t now what Sarah handed out earlier. I am kind of in the dark on some things. I would just like to be kept in the loop. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 29 of 65 Wayne Chamberlain: You bet. Sarah, do you have a copy for... Sarah McMillian: …I don’t have any more copies. Wayne Chamberlain: Okay, Deborah Richie. Deborah Richie: I am Deborah Richie-Oberbillig and I live up in the Duncan Drive area as well. I have worked on the Open Space Advisory Committee and on the North Hills Committee and I extensively write and work with wildlife related issues, and I know it is getting late and so I will not talk a long time. I submitted a letter which you have in your packet already. But I would like to draw attention to the...actually, I wish I still had this up here, Nick, I really did like that Google Earth map because you can see just how intact the North Hills is for...as an open lands area now. And it kind of gives people the impression that we have a protected Open Space North Hills area connected up to the Rattlesnake, when really we don’t because we have so much private land with potential for this kind of development and subdivision. And the consequences for wildlife are the kinds of things where it’s a fraying. You can think of it as when open space is working really well, it’s seamless. There’s wildlife coming and going. There’s elk herds, and bear moving and raptors flying, and grassland birds nesting. But once you start to fragment habitat that way and break it up, you start to loose those values. And what I see before us right now is an opportunity to do the right thing, and that’ to be innovative as a community to protect the wildlife, the very significant wildlife values that we have in the North Hills. And a subdivision like this, just cuts right into the heart of our lands that are now intact, because it is going deep up into that hillside. And as you can see, there is nothing like that. And once you start to do that and when we have the Duncan Meadows next to it, you are really making in roads in a way that’s irreversible. And habitat loss, habitat fragmentation from development is the number one threat to biodiversity in the United States. And I had a publication that I would be happy to leave for Nick because I have some extra copies of it. But I spent a year working on a publication for the Forest Service called Cooperating Across Boundaries, Partnerships to Conserve Open Space in Rural America. And I had the really wonderful opportunity of talking with the top researchers across the country in wildlife biology and different fields, habitat fragmentation and learned all kinds of things about the values of... We think this is just a little piece of land, but the fact is, is that every little piece matters and especially when you are talking about grasslands. I mean we...people get worked up about big trees; but they ought to get worked up about grasslands, because in the Missoula Valley and Western Montana, we’ve lost 80 to 90 percent of our native grasslands. And I would like you to draw your attention to a letter that was submitted late. It’s in this other packet, from Professor Richard Hutto from the Avian Science Center, and in that, he talks very specifically about the work they have done up in this area. And I will just read a little bit of that. “First, grassland habitats in the Missoula Valley are rare. An unpublished US Forest Service report estimates that 80 to 90 percent of low-elevation native grassland in Western Montana has already been lost. Indeed, many of the grassland habitats in the Missoula Valley where we once collected data on bird distribution and habitat associations have now been converted to subdivisions like Lower Miller Creek. Based on point count data from our long-term bird monitoring program, the following bird species are among those known to be relatively restricted to wide open spaces with intact grassland habitat similar to what we still have in the upper west Rattlesnake in Missoula.” And he goes on to list some species, and you’d be surprised to know that Western Meadowlark is a species that is declining, but is still thriving up there. Horned Lark, Vesper Sparrow, Savannah Sparrow, Grasshopper Sparrow. We talk a lot about elk and deer, and we ought to also think about the other kinds of wildlife and the values that we have up there. And you know, when I see the map with the draws down the middle, ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 30 of 65 while I think it is important to protect the woody draws, and it’s the law, and we should. The fact is that when you have broken that habitat up like that, when you have surrounded it by houses, you’ve kind of created a trap for wildlife and for birds. And especially when you have got cats and dogs and everything that comes in with them. I am not saying we don’t protect the draw; we really need to do that. But the fact is that we need to be more innovative altogether about how we view development in the North Hills. And I think that sort of extends to our co-community, and that’s our larger challenge. I mean there’s places across the country, and I won’t go on now, but where we can do things. Where you can still provide money to private landowners who want to develop their land and have your community grow the way you want it to grow with sending and receiving areas and stewardship credits. And I think Missoula, it’s time for us to step up, and we have a chance with this very subdivision proposal to do it right. But that’s going to take denying this one, and wildlife is a big reason to do that. Wayne Chamberlain: Thank you Deborah. And Marsha Hoem. Marsha Hoem: Mr. Chairman and the Board my name is Marsha Hoem, I live on upper Duncan Drive. Can you hear me alright? I would like to speak to the issue of neighborhood character. I bought land up on Duncan Drive 3 years ago, when my kids and I were looking to move out of the University Area. We were looking for someplace that had a rural feel to it. We might have moved anywhere else, but we chose the west side of the Rattlesnake because it did not feel like the suburbs. That was our main criteria period. I was also an editor of the book about the PEAS Farm, which is also largely a history of the west side of the Rattlesnake Valley, and so I know the rich history of the farming on the west side of the creek. As a historian, that holds a real value for me. As an aside I was reminded as I listened to Mr. Snavely, how much historians and lawyers have in common, and the story or the narrative that you arrive at is always largely contingent upon the set of facts you choose to look at and also who is doing the looking. I read the Sunshine agreement or large parts of it, and I wouldn’t have arrived at the same conclusions. I read the comp plan before buying our land, and everything in it lead me to believe that future development would be mindful of the unique rural character of the neighborhood. There are about 2½ pages in the comp plan devoted to the issue of neighborhood character with such strongly worded passages, and I quote “development should be at a scale which is compatible with the development patterns of existing Rattlesnake neighborhoods and the natural eco system which underlies and surrounds the entire study area.” Listed among the community goals in the comp plan is the desire to “recognize the importance of existing neighborhood character” It was never intended, at least in the eyes of the comp plan and the people who put it together, for the west side of the Rattlesnake Creek to look like the east side of the creek. Up until this point, development along Duncan Drive has pretty much followed the comp plan’s blueprint. This proposal seems to take the stance that following the comp plan or not is optional. When I brought my land it was with the understanding that the law says we must substantially comply with the comp plan. Nothing has changed with the variables that lead the architects of the comp plan to recommend lower density and to preserve the neighborhood character. All of their reasoning still holds. So it is surprising to me looking at the text of the neighborhood meeting with WGM that was held in July ’06, that concerns about preserving the character were voiced repeatedly by residents; and yet in the Sonata Park proposal, there are no comments on this issue. And looking at OPG’s report on the proposed subdivision on page 15, the one question that addressed neighborhood character is “whether the zoning gives reasonable consideration to the character of the district.” The OPG report responds by stating that “the rezoning request is suitable for the subject property and reasonable consideration to the character of the district.” Besides being vague, Orwellian language, that statement is just plain wrong. You don’t need to be an expert to know that if you throw 38 more homes up on to that hill, essentially quadrupling what the comp plan recommends, that you will forever and irrevocable alter the character of the neighborhood. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 31 of 65 Despite the lack of attention to the matter of neighborhood character from a number of parities, the issue hasn’t simply disappeared. It still matters to those of us who live along Duncan Drive. I hope that you will give due consideration to the current semi-rural character of our neighborhood, that you will honor the work of the many who contributed to the comp plan and you will not give your approval to the Sonata Park subdivision. Thank you. Wayne Chamberlain: Thank you Ms. Hoem. Are there any other opponents, anyone who would like to speak in opposition? Jackie Corday: Good evening, I’m Jackie Corday, I’m the Open Space Plan Manager for the City of Missoula; and I’m not here in opposition, I’m here to support the staff’s recommendations, especially in regards to environmental protection. And since I know it is getting late, I will keep it very brief. I want to address Condition No. 20 which is to eliminate the four lots. There are two main reasons to focus on that one and go with the staff report. The first one, as Jennie talked about was that it is zoned riparian, both the Subdivision Regs and the zoning regs both address the prohibition of placing structures within a riparian area. I want to read to you the definition out of the City Zoning Riparian Regs., because I think most people when they think of a riparian area, they think of a river or a creek and they think of the Cottonwoods and Willows along a creek; but in fact, the riparian areas incorporate much more than that. And so what is says, this is 19.51.030, “Area of riparian resource “ means a stream, wet meadow, woody draw, wetland or other body of water and land containing any of the habitat or community types listed in Section 19.51.110, and includes an adjacent buffer area. So, woody draw, that’s what I want to focus on because this is as you can see it is a woody draw. So the question is does it have the species listed in the zoning requirement. So then you go to 19.51.010 for habitat community types; and there is a listing for non-willow shrub types and in that it lists, Succulent Hawthorne, Common Choke Cherry, Wood Rose, and Western Snowberry. All those species are present; you may not be able to tell that in this slide. Nick Kaufman: This isn’t to debate Ms. Corday in any way shape or form. I don’t know where that is at on the ground. I don’t know if that’s in the four lots or not in the four lots. I don’t have any point of reference if it is in or out; and it’s quite critical and if you could show that I would appreciate it. Jackie Corday: As far as I can tell from the slide, I have done about four site visits out there. That previous slide showed Hawthorns that were in lot, as I listed in my letter from August 23rd, that would be Lot 35. Again, these species are present on the site and as you saw from the Google Earth pictures. You also saw the draws that come through here; there is a draw that runs east/west through what is shown as the common area. And then a draw the runs kind of north/south, that runs through the four lots, and then it joins the draw that’s going east/west and then continues on out to the road. So, Nick had made a couple of suggestions of how you could other wise potentially compromise on this. One of them was doing building envelopes. I don’t see anyway you could have the protection of riparian area by doing building envelopes on this. The vegetation pretty much encompasses almost the whole area of the four lots; therefore, you can’t have building envelops that would exclude the vegetation. Also the zoning regs also say that the vegetation is protected, but a buffer that is sufficiently wide enough to protect that vegetation. That is why in my letter I recommended deleting those four lots. The other thing I want to address, is for those of you who were here the last time for Teton, there was also a woody draw in that subdivision, if you remember it was Lot 17A. It had a steep draw that went down to the river. When I first reviewed that subdivision, I saw that in the aerial, I thought is that a riparian area, it is not identified in the application. So when I went out on a site visit that was one of the first things I checked, and I checked for those species of Snowberry or Choke Cherry or Hawthorne down in that draw. They were not present, so I got back in contact with WGM and told ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 32 of 65 them, you guys are correct, a woody draw but it is not going to qualify as a riparian woody draw. So it is important to note that every draw is not going meet the criteria that this one does because those plants are there. The second main reason for protecting this particular area where the four lots are is again, if you think back to Teton, I said when you looked at that 314 acres, what was the most important wildlife habitat on that acreage, and I said all of the land along the river, going down from the top bank. If you look at this site, again it is going to be that draw and you know I was glad when they did the redrawing from the January...when I commented in January the houses were much closer together. That would be on the western end of the property and then they pulled the lots back to quite a degree on the western end, but they didn’t eliminate those lots; and I said that’s because of the riparian area and because that is what makes this site so important for wildlife habitat, those need to go. So there are both of those reasons, again the Subdivision Regs provide for eliminating proposed lots in areas where there is important wildlife habitat, so we have important wildlife habitat, we got riparian, both of those regulations allow you to go with what staff has recommended as eliminating those lots. The last thing I want to mention is that Nick brought up modifying Condition No. 7, which was to allow for both Public Works and Parks review of the detention basin. He suggested that you would have just Public Works. Well I would like you to keep it just as staff has written it, and that is also because...Park issues are generally are not where detention basins are located; but in this case they are because they are in this sensitive woody draw. And that is not something that Public Works automatically looks for; they are not looking for that issue like Parks would be looking for that issue. So I want to make sure that, that condition...I would recommend that is doesn’t get changed. The last thing, Nick also mentioned we could continue to have those lots platted, and the City could buy them at a bargain price. Why in the world would the City say that we would buy land when the regs clearly prohibit having the lots there in the first place. So again, I would say that would not be a good way to go. Wayne Chamberlain: Thank Jackie. Now are there any other opponents, anyone else who would like to speak in opposition? Okay. Now here is how the rest of this works. We are now going to go into the rebuttal and surrebuttal phase of the testimony, and I don’t typically explain this, but sometimes it’s important when you have a large group that hasn’t done this before. We are going to ask the proponents to respond to the opponents and provide rebuttal to specific issues that were raised; and then we’ll ask for surrebuttal. During that time, if you have comment specific to the rebuttal, please come up and make it. It is not a...I am not inviting you to re-testify. Okay, does everyone understand that? No new testimony, when you’re done, you’re done. We are only talking about clarifying specific parts of the testimony. Fair enough. Mr. Kaufman. Nick Kaufman: Mr. Chairman, I have a request. We have listened to over an hour of testimony relative to this submittal with detailed comments. If I could indulge the Board to give us a 5 minute recess or 10 minute recess, I would like to confer on that. What is happening here is that, and I said this at the start and it’s reinforced by the testimony. I respect very much the neighborhood, and I respect very much the concerns that they have raised. But they raised concerns that the Office of Planning and Grants, the full staff, have not found as deficiency in the subdivision submittal. They have raised concerns and comments that the reviewing agencies, including the Fire Department haven’t addressed; and what it does, it’s an interpretation by the neighborhood that the packet and the reviewing agencies haven’t done a thorough job. Thorough is relative. Thorough is relative to the way the interpretations have been historically interpreted relative to the way they are being interpreted now, and I don’t want to slight in any way, shape, or form the comments made by the neighborhood. I would like a few moments to confer with my client and my team to talk about how we are going to address the comments that were made this evening. Wayne Chamberlain: Absolutely. Sure, you bet, let’s take ten. [Break] ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 33 of 65 Wayne Chamberlain: For the record, Mark Fitzgerald, a member of the Board has had to leave. Tim Ibey: He’s our Starbucks connection. Wayne Chamberlain: He’s our Starbucks connection, he can’t leave. We will get everybody in out of the hallway. Mr. Kaufman, would you like to respond to any of the comments that were made. Nick Kaufman: Certainly. For the record, my name is Nick Kaufman, I am a land use planner with WGM Group. And first, I would like to ask Don Snavely to respond to the testimony made regarding the Sunlight Development Agreement and the Growth Policy. Wayne Chamberlain: Okay. Nick Kaufman: Thank you, Mr. Chairman. Don Snavely: Thank you, Nick. Two points here. This is the first time I have seen this from Ms. McMillan. But what she...she made a big issue, and I think somebody else made a big issue that the proposal must substantially comply with the comp plan. That is simply not true. That was the law 20 years ago; and in 2001, the statute she cites was changed and I will read it to you. “After adoption of a growth policy, the governing body within the area covered by the growth policy pursuant to 76-1-601, must be guided by and given consideration to the general policy and pattern of developments set out in the growth policy.” It is a consideration; you must be guided and look at it. It does not need to comply with it. Further, the statute says, “A governing body may not withhold, deny, or impose conditions on land use approval or other authority to act based solely on compliance with a growth policy...” You can’t reject a subdivision application, like they are requesting, just because it doesn’t comply with the growth policy. The law they are citing is ancient law. There is a case out of Kalispell in the, I think it was in the ‘80s, that talked about it under the old Master Plan Concept. The statute that was changed in 2003 made it clear. It is a factor. We grant you, it is a factor; but it is not controlling. Now the Sunlight Agreement that they talk about, they pick one piece of language out of the Sunlight Agreement and say well the zoning is covered by basically all the laws related to zoning. Of course it is. We acknowledge that you contract zoning to say; well here, we give you money and we want this zoning. We understand that there is issues that go on. But this is an agreement, not a gift. The agreement must also be considered. Just like the comp plan should be considered and give some consideration; so must the agreement be given consideration. Otherwise, why did we...Why did the City Attorney negotiate a document called “Agreement.” Agreement means you give something, I give something. Okay. Under their interpretation, we--we Sunlight gave up everything and got nothing in exchange. That’s not an agreement, that’s a gift; and this was not a gift. So, the fact of the matter is the comp plan, by the way by its term says it’s a guiding document. It doesn’t say it’s mandatory it be followed. The law says it’s not mandatory it be followed, it must be considered; but so must the agreement. You can’t consider, take a comp plan that ignored the history of all this and was substantial consideration, you saw all the green area that was given to the City, and say well that’s fine, we’ve got that now. Now we want to plan this density of this land irrespective of this green area. It’s just contrary to all notions of fairness. That’s all I have to say about that, thank you. Wayne Chamberlain: Thank you, Mr. Snavely. We have been aware of that change in the law for a long time. Since it happened, it has been the bane of our existence, since the legislature changed it. Nick. Nick Kaufman: For the record, Nick Kaufman, again. When Mr. Harmon was showing his slides, one of the things he talked about was traffic; and he showed slides of emergency vehicles. And in the submittal, there is Trip Generation Data; and what we look at with trip generation is not ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 34 of 65 necessarily just the total number of trips, which are spread out over a 24-hour period, averaged daily trips. What we are looking for is congestion; and those points would be cause traffic hazards or traffic safety. That’s typically peak hours: the morning peak hour and the evening peak hour. Those are typically 10 percent of what your total traffic is. In this case, it is somewhere between 26 and 38 additional vehicle trips using 10, which is the Institute of Transportation Engineer’s number. Empirical evidence in the Missoula area leads us to believe it’s more like 7 ADT; and with increasing energy costs, it may be moving lower than that. That means in a peak hour, between 26 and 28 additional cars will be on the road. That’s less than one additional car a minute; that’s about one car every 2 minutes. Sarah talked about deficiencies in the submittal. She talked about the Sunlight Agreement, which Don has covered. I am going to have to go through my notes as we go through that. A primary among Sarah’s allegation of an incomplete submittal is Riparian Resources. I apologize for upsetting Jackie Corday, the Open Space Coordinator from Parks and Recreation. I have worked with Jackie on a lot of projects. I retained an environmental specialist who is familiar with riparian habitat-type classification. Her habitat-type classification differs from that of Jackie. I would certainly like to know why that does, and I need to put those together. When we got Jackie’s first letter, I gave that to Laura Jones-Lofink, who testified tonight; and I said, Laura, I need to know whether Jackie is correct or you’re correct. I need to know what the difference is here. If you would like to talk to Laura, she remains in the audience. There remains a difference of opinion. I need to find out why there is that difference of opinion, so we may need to go out on site together. Then I apologize to both parties there’s a difference, but I’m not...I don’t do riparian classification. I hire someone to do that. But I also respect Jackie’s opinion, and I know she doesn’t make those statements The Van der Poel letter was a new letter that we received. There is a certain level of detail that we go into when we do a subdivision submittal; and we certainly don’t research the entire University of Montana Geology Library as we do a subdivision submittal. We try to hit the highlights of the questions that are being answered, and we generally rely on a number of different experts, including Bill Weikel, for the hillside guidelines. I respect Mr. Van de Poel’s opinion, and that’s why I retained Mr. Weikel to provide the additional information for you. As new things come up through this process and questions are raised, we will try to provide that additional information, also. Mr. Derry talked about again, the incompleteness of the Staff Report, and he touched on the same issues, I think Bill talked about: seismic activity. I think he talked about the Van der Poel letter. We addressed the Riparian Plan with Laura’s testimony tonight. Don addressed comp plan compliance. Fire prevention, you know, once again we are in the Urban Wildland Interface. It’s a grassland habitat-type. We have proposed what we think are the industry standards relative to fire protection, and those have been reviewed by the City Fire Department and their agencies. If there’s additional standards that we need to be made aware of, we will certainly incorporate those if they’re appropriate. I will ask Frank Muth to come up and talk about the legality of the private driveway versus the road we are proposing at Teddy Turn and I can bring a slide up if we need to do that. But there is no sense having him come up now. I will have him address that. The waste water treatment facility concerns raised; those are wholly in the realm of the City of Missoula. The City of Missoula made those recommendations and amended the waste water treatment facility; and those questions should be addressed or answered by the City. Robin Carey brought up the soils. We rely on the Soil Conservation Service as our first line of investigation on any site; and then when necessary, we do additional investigation. On this site, we did significant investigation relative to soils; and I will ask Frank Muth to address that when he comes up to talk about the driveway. There was questions raised about the stability of the site, the ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 35 of 65 wet, slippery soils; and I think Frank will address that and it was addressed by Mr. Weikel, because the geomorphology of a site dictates how the land form was created. The soil development happens through a number of different types of weathering in the surface layer of that geologic formation, and so they all go hand in hand. Josh, I appreciated Josh and I appreciated Garden City Harvest. I have an older daughter that gains maximum benefit from the Pease Farm. He testified yesterday that we shouldn’t develop on flat ground, and he testified today that we shouldn’t develop on hillsides either. I notice that he has a family. I’m not sure where they are going to go for the housing that they’ll need as they grow up. Harold talked about fire. He was a smokejumper; he’s got great experience. We all know when I testified at a recent city hearing relative to fire along a trail system before this Board not long ago, fire remains a major concern, an increasing concern for us; and I’ll be happy to review the information Harold has and see if it can be incorporated into our subdivision document. Deborah Overbillig [Richie] talked about the grassland types, and grassland types are certainly important. As we talked about in this proposal, almost 50 percent of what we are showing you remains in that grassland type, over 15 acres of the 34 acres. Neighborhood character, I think is subjective; and I think the folks that live in the neighborhood can best address their neighborhood character that to have me, who is an outsider, try to address that for them. Once again, I want to be very careful and make sure that Jackie’s analysis of the riparian and our analysis of the riparian is tested in the field before we get to the City Council. Thank you. Wayne Chamberlain: Thank you. Frank Muth: Frank Muth, and that’s M U T H. I am a structural engineer; I have been practicing for 35 plus years. I’ve concentrated most of my practice in the western states, and I built my residence up on this subject piece of property. But in 1993, I submitted this geotechnical report. I had Jay Crawford from GMT go out and perform an evaluation for me; and that evaluation was actual...We actually took the drill rig out and we drilled the 52 acres, and we just set up a grid pattern and we went through and we drilled the 52 acres and I would like to enter this 1993 soils report in answer to Mr. Van der Poel’s concerns. Now this report was prepared back in 1993. We were going through a zoning process and at that time, we were told by Mr. Van der Poel that, gosh, you know you’re going to use septic tanks and drainfields and you’re going to saturate this ground and you’re going to cause an unstable condition. Yes, you can state all of that, but Mr. Van der Poel was making his assumptions based on looking at the land on an aerial photo. We actually went out and drilled and tested the soil. So this soils report picks the data up necessary to go back to the office and perform the modeling, and we did a slope stability analysis and the lowest factor of safety we got was 2.4. So we are convinced in our mind, that we have a very stable soil mass out there. I am convinced; I built my house on it. I have been on this property since 1995, and I have dug holes, planted trees, I’ve dug holes, and dug test holes and I…In listening to one of the opponents, they recognize that Glacier Lake Missoula existed, but then they kind of stopped right there. Well, what we are trying to say is that this square mile is...yes it is debris, landslide debris. It is landslide debris. I think if you read through these soil boring logs, you’ll see that it’s a hodgepodge of material; but after it slid, then the lake filled back up and we had 600 feet of water setting on top of this debris field. Well this 600 feet of water will put significantly more compaction effort than any of us could ever dream of doing. So we not only have a very tight mass with a top layer of fluff, and I have dug various holes throughout this area. And it’s tough digging and it’s highly compacted. How did it get compacted? It got compacted by water sitting on top of it. No. Could it ever slide again? Well, we think not realistically it could slide again unless we build a dam at Alberton and re-flood or recreate Glacier ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 36 of 65 Lake Missoula...recreate Lake Missoula to get the soil saturated again. Bill Weikel testified that the amount of rain or our precipitation or a broken water main is not adequate in any way to bring these soils back up to their saturated condition where they loose their factor of safety of 2.4. Then to address the seismic concern of the fault, now the fault was discussed by Mr. Van der Poel, but when you hear fault, what do you think of? You think of the San Andreas fault, of course. Everybody when they hear the word fault, they think of an active fault like what goes on in California. This fault that goes...the Clark Fork fault and then it hooks up into the Ninemile, happened about 35 million years ago, as best we can tell. So, it’s not an active fault. And wherein, we build in this valley with the international building code. In that building code, there’s certain criteria that every set of plans that, if your going to build a house, you have to have your plans approved by the City Building Department. And there’s criteria that address the seismic forces that we anticipate in this valley. We provide for that in our design. So, it’s not a buyer beware that this piece of ground is going to rattle. We’ve got a stable piece of ground. we’ve got building codes that require us to respect the proximity to our seismic activity in this particular region of Montana and that’s the way we build our structures. And I think if you follow the code and build your structure, you have a sound structure. Okay, I’m going to step away from the dirt and go to the driveway. Now what I believe I heard Mr. Derry talking about some confusion on Teddy Turn. We named Teddy Turn, that happens to be our middle son and he delights every time we turn on Teddy Turn. We picked that alignment where it is now rather than driving out on the noodle because we felt that it had better sight distance on Duncan Drive. With the approach coming off of Duncan Drive at the original Teddy Turn was less than desirable; to me, it was not a safe approach. And so we moved the approach, we moved Teddy Turn…we moved it to the north end of Papoose Three instead of the south end. And we have an easement to cross and it is our intention to take that easement and to prefect it into a public access. And the reason we did that is because we have better access onto Duncan Drive. It’s a safer access here to come off of Duncan Drive when the roads are slick and we have better sight distance. I wasn’t trying to slight anybody on building their portion of the road, it was strictly a safety issue and we have the ability to perfect that and make it into a public road. So I would like to submit this, how do I get it in? Wayne Chamberlain: Give it to Miss Dixon. That will be included in the City Council Packet. Now, Mr. Kaufman, any other direct rebuttal? Okay, great. Any surrebuttal. Sarah McMillan: For the record, Sarah McMillan. I would like to make a couple of points. First of all, the statute has not changed, the portion I read has not changed. There was an addition to it, not a deletion. But the standard is still substantial compliance and that is confirmed in north 93 neighbors as well as a little less directly in the Citizens for a Livable Missoula case from the Montana Supreme Court. The case is substantial compliance. That has not changed. The second thing that I wanted to point out is that I wasn’t intending to say that solely based on the comp plan, the growth policy of Rattlesnake Amendment Open Space Plan you should deny this but in addition to all of the other comments that were presented to you in addition to the deficiencies that I had noted. The final point that I would like to make is that Sunlight got something from its Agreement; it got an investment in the sewer infrastructure. And the 1989 Sunlight Agreement has a provision that says if in the course of this 40-year agreement, you don’t end up being able to develop 6,000 lots or whatever it was, we will pay you back about 128 dollars per sewer-loading limit. So there is a provision in which the city and sunlight recognize that over the course of 40 years they might not be able to actually develop all of those sewer-loading units that they have invested in and then that ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 37 of 65 money will be returned to them. And so they got something from this agreement, they didn’t get nothing. They did not get a density rights and an agreement from the city that they can develop what those sewer-loading unit numbers. Thank you. Wayne Chamberlain: Thank you. Yeah, we trust that agreements in the past are made by coherent adults and you get what you sign on the dotted line for. At least I always had that opinion, even when I signed bad contracts. Okay, any other surrebutal? Okie-Dokie, Dave? Dave Harmon: Dave Harmon, 3500 Duncan Drive. Not much to say, just a couple of points. Wayne Chamberlain: Are the related to what Mr. Kaufman had to say? Dave Harmon: Exactly. Yep. Nick questioned the two X or three X traffic increase and I know he understands this a lot better than I do but at least he can explain my reasoning was there are approximately 30 homes in our neighborhood now. If this 38 lot subdivision is approved, that essentially doubles the amount of homes henceforth I would assume that would double the amount of traffic. It could probably be a lot more complicated than that, but that’s where that came from. It’s interesting, also, that with regard to the Van der Poel letter that they knew about this issue back in 1993. I assume the staff also knew about it, but, yet, in the application they say not applicable, but there is no issue with soils there. I think it would have been at least proper to say well there’s at least some question about soils in that area. Also, it… just as an aside, the same fault line in question is the one that runs near or under the soon to be taken down Milltown Dam. And I know the health department person in charge there was using that as one of the reasons for removal of the dam because of concerns about the fault line there. I suppose its possible that it could be a problem there but no here. But I’m pretty sure that’s the same fault line. The thing about the sewer service area that nick had brought up that said we should basically communicate with the city… or you should communicate with the city about questions about that, I just want to point out that something that Mr. Derry discovered for us. I mean, we’re trying to figure out… we’re honestly trying to figure out somebody respect… we respect the planning department at the city, I’ve worked with them myself for a few years. We’re trying to figure out how can we go about that, here is a piece of land that’s unzoned, the city attorney has told them these sunlight things don’t really mean that much as far as zoning it, there’s a state law that says you need to substantially comply with the comp plan but yet the staff says no 38 is an okay thing. Well, maybe minus four. So we’re trying to figure out well what’s going on there, how did they come to that conclusion? And I think what Brian discovered by going back and looking through all this really what happened was a value judgment was made that said one line in the sewer service agreement that said where the sewer service area is is a place that’s ripe for development. And they used that versus all the other language that says you should kind of follow the comp plan and all the language in the rattlesnake valley comprehensive plan and the growth plan and they made a service value judgment and said this one line in the sewer service area makes more sense. That’s all we can figure out…that’s the only reason we can figure out why they would recommend approval of this subdivision at that density. So I wanted to make that point. Lastly, at least for myself, is the comment that Nick made about Josh. And I just want to point out that maybe Nick wasn’t listening closely, but Josh did not say that he does not support development on this hillside. What Josh clearly said was that he would support… he does not support the current zoning that they want to apply to that. There’s a whole range of development that can happen there, like ten or eleven units that I’m sure Josh would be fine with because that would not have effects on the garden area there. Secondly, comment about him having a family and wondering where he’s going to live…a bigger question for Josh, actually, is not where he’s going to live but where he is going to work. Josh is an ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 38 of 65 organic farmer, he’s being surrounded by subdivisions and it very well mean that he’s not able to continue to live there and farm there, he might be pushed further out of town because we’re not thinking about preserving agricultural lands within our city. That’s all I have. Thank you. Wayne Chamberlain: Thank you Dave, any surrebuttal. No? Good. Jackie Corday: I just want to reiterate one quick point. I’m concerned that Nick is characterizing this riparian issue as kind of a battle between experts. But, in fact, this area is zoned Riparian. That’s really unique. There’s only about 2 percent of the land basin in Missoula that’s actually zoned Riparian. So my investigation just confirmed that in fact that species of plants that the zoning is trying to protect do, in fact, exist on those lots. Wayne Chamberlain: Thank you, Jackie. Okay. All right, we’ll close public hearing. Now comes the fun part. Gentlemen, ladies, questions for our participants tonight? Sorry, go ahead Alan, I’m just arranging my notes. Alan Ault: Jennie, question. This gas line that runs right through the middle of the subdivision—has there been any studies done about that? Jennie Dixon: Not that I am aware of specifically referencing this pipeline. The comment from YPL it did not comment on the second version of this proposal but it did on the first and their comment is Attachment A. They simply indicated following their guidelines. Wayne Chamberlain: Which is a 50-foot setback… Jennie Dixon: There’s a page long… Wayne Chamberlain: …buffer, yeah… from the line. Tim? Jennie Dixon: If I could also add, there’s a condition relative to constructing the road over the pipeline as well. Tim Ibey: I have a question on the four lots, and the reason that I have a question on it is that I’m looking at the house that’s across the road from there and it appears to be built right in the gulley. And I’m wondering what makes one…what makes it important to protect it there but why didn’t we didn’t protect it above there? Jennie Dixon: Jackie? Wayne Chamberlain: Jackie? Jackie Corday: I can almost say for a fact that was because it didn’t go through subdivision review and if it had gone through subdivision review, we would have said the same things you’re saying now. Wayne Chamberlain: Was it not part of the subdivision? Jackie Corday: Uh-uh. As far as I know. That can be easily confirmed tomorrow for PAZ. I’m sorry I can’t confirm it for you, but I’m pretty sure it is not. Nick Kaufman: Jackie? Jackie Corday: Huh? ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 39 of 65 Nick Kaufman: Do you know how old that zoning district is? That riparian zoning district? It seems it goes back 8t or 10 years to me. Jackie Corday: 1999, I believe. Nick Kaufman: 1999. So if it was zoned, the house shouldn’t have been built there, it shouldn’t have got a zoning compliance. Wayne Chamberlain: Shouldn’t have had a zoning compliance, but that doesn’t answer your question, now, does it? Jackie Corday: No, Wayne. Wayne Chamberlain: But we didn’t have it in ’99, we didn’t have the County…was that part of the City by then? Jennie Dixon: Nick, do you know when the house was constructed? Frank Muth: The house in question is Ken Cleaves’ and two answers there: it’s built on a parcel that was split as a gift and it was built about three or four years ago. So that would have put it about 2004, 2005. Wayne Chamberlain: So it didn’t go through subdivision review? Frank Muth: No subdivision. Wayne Chamberlain: That answers that. But they had building inspections, so soils and all of those things were taken into account by…didn’t we start… the city had building inspectors back then. It was the county that just recently started doing building inspections. Jennie Dixon: Yeah, I don’t believe they inspect for extern… Wayne Chamberlain: Soils and impact all that would have been inspected. Anything else? Tim Ibey: Yeah. I am kind of wondering why… This is just a question. Why do we have a 100-foot setback from city…a city easement…a city… Jennie Dixon: A city open space? Tim Ibey: A city open space. Jennie Dixon: Well, that is an attempt to meet the recommendations of the 1995 comprehensive plan update of maintaining low density development within 300 feet of the city’s open space as well as acknowledgement of the designation as an open space cornerstone which requires developers to incorporate mitigations to impacts to open space development. Tim Ibey: I can understand that, but I guess as we acquire more and more open space why we don’t just acquire that extra 100 feet so that we aren’t impinging on someone’s private land? And that’s just a thought of mine. Wayne Chamberlain: Well let me put another cast on that then, might you say that by providing a 100-foot buffer you were giving the 1995 amendment consideration? Jennie Dixon: Certainly. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 40 of 65 Wayne Chamberlain: That’s why. Tim Ibey: Still doesn’t satisfy me, but that’s okay. I’m used to not being satisfied all the time. And I guess the question that begs to be asked here and I know this isn’t going to make a lot of people happy, but we went through a knock-down drag out deal over some sewerage of the rattlesnake and here we are with sewer and we’re looking at a density that is, as far as I’m concerned, not dense enough for having the available infrastructure there. And that is a very expensive thing to do for that…for those few homes. And so I’m just wondering why we’re putting a subdivision together of 38 homes with as low a density as we here on 38 acres. Wayne Chamberlain: Jennie? Jennie Dixon: I can’t speak to the motivations of the subdivider and the reason for proposing the subdivision the way that they did, but that was a question that I’ve been mulling over for months now as I’ve been preparing to present this report to you. And in mulling that over I contacted the City Engineer…well, first I did quite a bit of research into why this property was not within the wastewater facilities area, why it was later, subsequently, included a year and a half ago, what the implications of that are and the policy statement being made by the City by including within that area as they’ve indicated. That was a strong factor in my consideration for recommending development at this level versus something lower. And also I think somewhat of a conservation design that leaves a significant portion of the property in open space. So I contacted the City Engineer to ask if this is in the wastewater treatment facilities area to be sewer. What’s the level of development that you would expect to see on sewer given that the City has now made the statement that they expect development on this property that would be cost- effective for the City. And he indicated that a four per acre is kind of a minimum density that they would like to see to recoup costs of providing sewer to certain area. That was important for me to think about, but it was also one of many factors that I kind of have to balance in my mind that maybe not every area within the city’s wastewater treatment facilities area is appropriate at four per acre or greater. There are areas, and certainly our zoning acknowledges it, that can be two per acre, one per acre, one per two and so that…I didn’t take that information and run with it…oh, four per acre is what we need to be doing here because there are certainly areas on this property here that are not appropriate for that whether or not its riparian, whether or not it’s adjacent to open space. I think the location and the character as the testimony has indicated warrants evaluation at a less density than the four per acre that the sewer is supposed to support. Wayne Chamberlain: Mr. Muth, could I ask you a question, please. Come to the microphone. Frank Muth: Yes sir. Wayne Chamberlain: I happen to live at the other end of your lift station across the Rattlesnake Creek and I wonder how you envision elevating the sewage and pushing it across Rattlesnake Creek to my side? And how is that going to look? Frank Muth: Very carefully. Wayne Chamberlain: It is our secondary water supply for the City. I am concerned. Frank Muth: I alluded to the fact that I am a bridge engineer and we did install the sewer and the water on the bridge that crosses out on the…in East Missoula that goes to the golf course… Wayne Chamberlain: Right. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 41 of 65 Frank Muth: We have a double-edge plan; I am competing with my older brother. He feels we can bore it and go under the creek. I would like to put a pedestrian bridge across and put the force main on the pedestrian bridge. We have friends on the other side that we like to go visit and we like to ride our bicycles to go visit them, but it’s a long ways around to either go up there or go back down to Rattlesnake School. I think it would bring the two communities: the Fox Farm people together with us. We’re not anticipating, we’re not proposing a vehicular bridge albeit the bridge would be capable of taking emergency vehicles. We would design the bridge such that we could put ambulance… um… the fire trucks… you know the grassland type fire trucks. Wayne Chamberlain: Thirty-six thousand pounds across a pedestrian bridge? An engine, that weighs about 36 thousand pounds with 500 gallons of water. Frank Muth: No, no we are talking about the grassland type trucks, the one-ton trucks. Certainly, we could put 36 thousand pound capability on… but we didn’t want to make it a temptation to become a thoroughfare to cross. We just didn’t feel that that could ever carry any water and that… that… a worry that they are going to bore under the creek or b worry that they are going to put a pedestrian bridge across and carry the lines across the bridge. Wayne Chamberlain: Excuse me if I am a tiniest bit dubious, but how can that be cost-effective? That’s a long run from this subdivision to Creek Crossing. Frank Muth: Yes it is, and that’s why Duncan Meadows…I heard testimony earlier here that they would approve Duncan Meadows, but they wouldn’t approve this one. Well, the two piggyback. If this one doesn’t get approved, then Duncan Meadows can’t. Wayne Chamberlain: Can’t? Frank Muth: …can’t work. So it’s a Catch-22 that we’ve been facing for the last 15 years. Duncan Meadows is hinged on this project going forth and that we extend the main ultimately across Creek Crossing. Wayne Chamberlain: And my assumption is then that you’ll have an SID that will help share that initial outlay of cash to put the line in to begin with from the other… Frank Muth: No SID. Wayne Chamberlain: No, no, for the other folks, for the other subdivision that needs to hook up to some sewer. Frank Muth: We’ve been talking to Ken Cleaves, he’s our neighbor to the south; and he would like to have been here tonight, but he’s where it’s warmer. And he’s… he’s trying to… Wayne Chamberlain: He’s thinking about subdividing his land, also. Frank Muth: Well, he’s more than thinking about it, but he’s trying to work out some kind of conservation easement into the whole scheme of things, and so he isn’t in a position to jump on board and sign me up for 35 units or sign me up for 2 units. So we’re looking at this and we know that our project and Scott Cooney’s project are integrally tied. And then Tom Himes would have to come in and you know share into it also. Wayne Chamberlain: Thank you. Jennie, how many houses or building sites… that was a great… I’ve got to get Google Earth, that was…I loved that…what would have been very informative for us because we look at these subdivisions and those incremental gains and incremental losses… it ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 42 of 65 would have been really nice to have plotted out these other areas. How many homes are potentially going to go up there? I mean private property, and that’s king in Montana and we understand that and we can move to restrict development and we can nibble at the edges but we understand that this is still Montana. And it would have been really nice to have some… and I hope City Council asks the same question: what are we really looking at the west side of Duncan? Are we looking at 34 homes or are we looking at 134 homes? Or 234 homes? With a sewer now available, and I’ve had this argument with Paul about a million times. My argument is that a sewer doesn’t cause growth… growth… sewers precipitate dense development caused by growth. One is not causal to the other, though he would quite adequately defend himself on that. But my concern is that this isn’t just your subdivision that we’re talking about. My concern is that this is that whole side of Duncan that is going to be developed and what are the appropriate and meaningful conditions that we can suggest to put on these so that it isn’t 132 homes. Nick, can you help us understand the concept on that side of the mountain? Nick Kaufman: I don’t have a number. Dave and his group might have a number. Frank and his group might have a number. If I plug back into the overhead, I can go back and show you that just beyond Scott Cooney’s property is basically City Open Space, and down along Rattlesnake is City Open Space. And so there is a few homes and tracts left in here. There is a tract left above that is zoned…I think two-dwelling-units per acre within Missoula County. Wayne Chamberlain: The on that looks over the landfill. Nick Kaufman: No, it’s up above, but it’s in the County and it is zoned in the County. So the…there you go. Wayne Chamberlain: Yeah. Nick Kaufman: So if you look at this slide, you can see that this is the proposal that you’re looking at tonight. This has been subdivided as Papoose here, previously subdivided. This is what’s been called Duncan Meadows, this is the Cooney property, and then above that is what was acquired by Sunlight Development here and so there’s some properties along this side and along this area that have the potential to have development. And then this area, I think, what Josh was talking about tonight, I think this is owned by the School District. I know that the Peace Farm is trying to purchase that and we wish them the best in that endeavor. So I don’t know what the future of that is; it may stay an organic farm. Mr. Harmon’s piece is here. I’m not sure there are any constraints or restrictions here. Wayne Chamberlain: By in site. Nick Kaufman: Huh? By the in site? Well, once again, this is all the Spurlock property that it zoned two per acre in Missoula County now. We’re not providing access to that because of this 100-foot wide open space strip. I’m not sure the City will ever allow access through that, so that will probably go down Coal Mine Road the other way. And a lot what’s been talked about here tonight is a second way out. If there was a second way out, this is where it would be. I’m not proposing that by any way, shape, or form. That has a lot of popular and unpopular issues associated with traffic in the Rattlesnake. But this subdivision does not propose vehicular access to that side. Wayne Chamberlain: Okay. Paul Paul Sopko: Either Mr. Kaufman or Mr. Snavely, I have a question for you. Basically, could you just give us a little bit of detailed history of the zoning for this parcel? I think you said it was zoned two per acre, then it went to unzoned and I’m just wondering how that happened and a little what happened after that. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 43 of 65 Don Snavely: There was a report done in connection with being included in the sewer district by the city staff and that’s where I got my information. I guess I could dig that out… let’s see if I can get my notes here. The Urban Plan in 1975 provided for about 2.6 per acre. Then came the 1976, let me see… Paul Sopko: That’s the comp plan that had two per acre, it wasn’t… Don Snavely: They called it the Master Plan… Paul Sopko: … but it was unzoned at the time, still? Don Snavely: Correct, correct. Paul Sopko: So was this property ever zoned? Don Snavely: Yeah, 1976. The County zoned it 19…this property I’m talking about Sunlight now. The 939 acres of roughly two per acre, that’s what it was when it came into the city, okay? But then it came into the City unzoned. Paul Sopko: It went from two-per-acre to unzoned in the City? Can I ask why that would happen? Don Snavely: Couldn’t reach an agreement on zoning. Paul Sopko: And so it was unzoned? Don Snavely: Then the 1989 Agreement comes along about considerably 13 years later and then, of course, this was a lot of hashing around about density and all these concessions were made and that’s what our concern is. You can’t ignore that green area up there. I mean, that area is part of this property and if it’s…it adds to the less density of the area. There’s been attempts to zone…I was not involved but there’s been attempts to zone, there have been protests but they just couldn’t get it done. At least once or maybe twice. Paul Sopko: I guess my question… maybe you can’t answer it… why after the City made an agreement with Sunlight, if you have a certain amount of rights, density rights, why wasn’t there an attempt to zone it to match the agreement after that. That would make more sense. Don Snavely: Maybe Frank knows about that. Frank Muth: After the 1991 option was exercised by the City that, along with the City to buy that 150-foot strip… you see that narrow little green strip? Well, you go out on the ground and look at it and it’s a high voltage power line, that’s what runs in that corridor. But if you look at it real close, what that did was it enabled the City to wholly surround the Rattlesnake Valley and they annexed it. So it was zoned as two per acre in the County and then by getting that little narrow strip there, it gave them the tool. Sunlight gave the City the tool to wholly surround the Rattlesnake and then thereby they were able to annex it into the City. Once they annexed it into the City, then the…at that time, Sunlight was in the process of splitting off these pieces. There’s… I got a whole book of certificates of survey both… we were sitting in meeting after meeting over in Garlington, Lohn…Bill Wagner was handling the work for Sunlight and all the potential buyers were being asked, well can you live with…how many density units do you want? How many sewer development units do you want? This was what the covenants allow you, can you live with that? This was the first zoning proposal and we never could get our arms around that first zoning proposal. It came to the City Council and we protested it out because I think at that time it gave us 8 units on 52 acres. And so what our concern was… was gosh, if this is City… if this is City and we bought these sewer…we paid the RSID, you know, that gave us 40 sewer units, this is city, why are we talking about a ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 44 of 65 density that if you have eight units you bought a pig-in-a-poke, you aren’t ever going to be able to extend sewer for eight units. And so the thought was all of these areas would develop on septic tank and drainfields. But then we had the 95 zoning and the numbers kept creeping down lower and we protested that one out. And so when I say we protested it out, we had to come to agreement with Cleaves and ourselves, and at that time Morrises owned that property before Scott Cooney, and that’s why its unzoned ground. Because, quite honestly, they received all that green ground, but that wasn’t good enough, they still wanted more and they were going to take it by zoning. Paul Sopko: So the City when they annexed you, they initiated the zoning which was, and the zoning they initiated was a lot less than what your rights that you negotiated with them for would allow. Frank Muth: That’s correct. Paul Sopko: Okay. Wayne Chamberlain: Yeah. Don. Don Latham: I would like to ask the Homeowners Association, and I understand what your problem is from this aerial photograph here, okay. What the real problem is, alright. Was any of this Missoula ex machina operation explained to you when you bought your property? Was there anything in the...did the realtors tell you that the land above you was going to be developed someday, no doubt about it? No question about it? No ands, ifs or buts about the development of that property? Whether you get together and generate a non-binding Rattlesnake Plan, which is binding on nobody, which is hopeful; but really doesn’t do much, I hate to tell you, as you are here to see. Was any of that explained to you when you bought your property? Dave Harmon: What I would say that all of us are owners of Sunlight Land just like the developers are. We bought our land and they told us we had so many density rights and so many sewer units, etc, just like the developer has. We also, I think some of the people who bough it realized, you know that...at least myself, I went to the City Attorney and said, what does this mean? What are these density rights, sewer rights and that stuff? And he was pretty clear at that time even, that it’s not going to...it’s not the same as zoning. So, I think anybody who bought this land from Sunlight, it was speculative. Okay. And I might just throw in the economic argument you guys were talking about what it costs to bring the sewer over. We did have a study done by Eli and Associates and I will share that information with you of the cost of bringing it over. They can bring the sewer over, sell 11 to 15 units and make a lot of money. Frank’s ended up paying about $56 thousand for the piece of land you see there. He has already had a couple of subdivisions made from the $120 thousand that he paid for the whole thing. So, please, don’t go that economic argument about them not being able to make money on the deal. Wayne Chamberlain: So, to the extend my question a little bit how many sewer units do you have on your 13 acres Dave Harmon: I have 20 acres, we had 59 density rights. I don’t know, to me it doesn’t mean that much and frankly if I was going to develop my property I really feel like could divide it into four pieces and make almost as much money as I could into 30 or 50. Wayne Chamberlain: So have you sold any of those units, sell them, trade them? Dave Harmon: We sold not the density rights, Wayne, we sold... Wayne Chamberlain: ...the sewer connection rights. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 45 of 65 Dave Harmon: ...sewer connection rights, yeah. We sold one or two of those and so they are something that you can sell. We made the assumption; Sarah has made the assumption that if we were to take away some of those things that the developer has paid for, we feel the City should pay them back for that. That is only fair. Wayne Chamberlain: That’s what the deal says. Don Latham: So it occurs to me that your eyes were open when you brought this acreage that you brought, that is was developable and that the acreage around you was equally developable. Dave Harmon: It could have gone either way then I myself was heavily involved with the planning process with the neighbors where we went through an extensive process over a number of years to try and say what’s the future of this place, and you know frankly if you guys are not going to give any weight to the comprehensive plan, I wish you just tell people ahead of time, because I spent two years of my life working on that, with a whole bunch of other people and if it doesn’t mean anything, then why go through the process, why do we even go through these planning processes, if it doesn’t mean anything, You’ve got unzoned land, here is a chance, you know, there is a planning process that was suppose to help dictate and help guide that. If you are not going to even look at it then what’s the sense? You are wasting people’s time. Wayne Chamberlain: Dave, you are singing to the choir. In fact we sent one of our members to the State Legislature, who introduced the bill to overturn that change and it was, it didn’t get out of committee. Dave Harmon: Okay, thank you. Wayne Chamberlain: We understand. Don Latham: Thank you very much Wayne Chamberlain: That’s where all the public input goes is in the Comprehensive Planning, and in 2003 it was made something we need to take a look at and we do, but it is nothing the County Commissioners or the City Council can then hang their hat on. To say no to having more than that and it has got to be demonstratively more than that and that’s a shame. Are there any more questions? Jerry. Jerry Petasek: I just want to beat this sewer development units intensity rights thing to death. I’m just asking for clarification or a kind of my thoughts on this. If you look on page 1, I am sorry the audience can’t open up the packet here, under Project Summary in the developer’s packet. It has this great little chart, sewer development units density rights, drain fill rights and then it says Tract BB-2A, Tract BB-2B and then it has got all the deals. I don’t even much care about all of that. But like sewer development units has got a little asterisk, they all do and have footnotes. So, for sewer development units it says per the 1989 agreement, sewer development unit means that one lot with one resident on it can hook up to the City sewer without paying the normal hook-up fee. Okay, so the sewer development units doesn’t give you the right, the unhindered right to develop a lot, as I read that. It just says that if you build one you can spend one of these and it’s a free hook-up. Then for density rights it says per the 1989 agreement, density rights means that for each such unit, now I am assuming that they mean sewer development unit. Since it is the only other unit named in the whole page…one residence can be constructed. That makes sense, they are just basically trying to say that if you have one sewer development pre hook-up you can’t use it for two units. But then it is the second sentence that kind of confuses me. “Thus if a parcel has ten single family density rights, ten single family residences can be constructed on that parcel.” I almost wonder it ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 46 of 65 that is a typo in some way. Because to me when they say, “density rights” it is not giving the developer this much density. It is giving them...it is defining how many units can be hooked up to a free sewer hook-up; one to one, for free… Wayne Chamberlain: For free..that is a substantial thing.… Jerry Petasek: Yes. So I don’t know if I am reading that wrong and I probably am. I am sorry I forgot…Frank? Frank Muth: Each Sunlight purchaser signed on to a set of covenants that were made part and parcel to your deed, and in that Sunlight covenants you were given density rights, sixty density rights. Then there is language in there that says, “even if the City zones it for 120 density rights you by covenant can only put 60 units on. So by covenant 60 is the most that that property could ever dream of having. Even if the governing body wanted more on there, it can’t happen because it would be a violation of the covenants. Jerry Petasek: So it’s a maximum. Frank Muth: It’s a maximum. Jerry Petasek: So when the City says we want 10, do you still get to do 60? Frank Muth: If it’s zoned for 10, then it is zoned for 10. Alan Ault: But remember, covenants are not enforceable by law. It’s against the law; they are not enforceable by law. Jennie Dixon: They are not enforced by local government; they are a contractual agreement, a private contractual agreement. Alan Ault: Yes, but it still throws out the argument. That’s the way I look at it. Don Latham: That’s what I understood that a covenant is a right to sue, it is kind of like a patent. If you’ve got enough money behind you, you can do anything with it. But it’s, it appears to me that to follow up on this Jerry, doesn’t it really say, you only get so many freebies but you can buy as many as you want. That is the point of confusion for me. It says if you want to pay a lot of money you can hook-up more than your allotment that you got for free. But you get this many for free. Wayne Chamberlain: Not free, they prepaid them. Don Latham: Well yeah, it’s essentially that you have paid for this many and that’s the amount you can have. But that at least upper bound or lowest or anyway, I’ve forgot my math. But the point is that you can have more than that if you want to pay for them. That’s the way I would read that.… Tim Ibey: Well I was just going to say with the covenants there isn’t any…nobody from the City or the County is going to come in and enforce them. But your neighbor certainly would, I would think. We are already not at the limit and having an enforcement problem. Wayne Chamberlain: Oh, Kevin, sorry. I was looking for Jennie. Kevin Blackler: Well, I just want to ask the question nothing is for free, and I just wanted to know where are we getting this free sewer hookup. Somebody had to give something up to get something, and do you throw the word around free. Nothing is ever for free. Wayne Chamberlain: Sunlight paid for them, $126.70 a piece. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 47 of 65 Don Latham: See all that green stuff up there. Kevin Blackler: Well that’s what I am saying. They gave something up in order to get this sewer right, so it wasn’t free. It was at a high cost. Wayne Chamberlain: I agree, there’s no free lunch. Let’s get back to the questions and then we’ll move on to... Tim Ibey: I move that that the property be zoned RLD-2 with a PUD Overlay, based on the findings of fact and subject to the recommended conditions of rezoning approval. Don Latham: Second. Wayne Chamberlain: Seconded by Don. Discussion? Tim Ibey: I only did that because I wanted to move things along. Wayne Chamberlain: I appreciate that. Discussion? Jennifer Clary: So this is where we would discuss the four lots? Wayne Chamberlain: This is the PUD Overlay. The one-to-one overlay. Jennifer Clary: But could we discuss the four lots at this point, though. I mean... Wayne Chamberlain: Sure. Actually the four lots will be in the conditions section. Jennifer Clary: Is that right. Okay Jennie Dixon: Yes. Wayne Chamberlain: So is there a question, Jen? Jennifer Clary: I asked the question about the four lots. Wayne Chamberlain: At this moment. Okay. Good. Talk to me more about the PUD and overlay and maybe I’m just...don’t understand this well enough. Why wouldn’t staff recommend, not a PUD Overlay, but the actual subdivision be a Planned Unit Development, itself; or is this the same thing? Jennie Dixon: Same thing. Wayne Chamberlain: It’s the same thing. Okay. I don’t think I’ve ever heard of it referred to that was. Are all PUDs Overlays? Jennie Dixon: Yes, technically by the regulations in 76—or Title 19, yes. Wayne Chamberlain: Okay. Any other discussion? Jennifer Clary: I am tired, but if we...I guess my main question is the four lots that are in question. If we pass this portion, this motion; and then later we say we want the four lots out, are we...we’re not doubling up anything. We’re not confusing anything. Jennie Dixon: That’s a really good question because the answer to the question earlier about do you talk about the deletion of the four lots later was yes. But I guess in reality, you need to kind of ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 48 of 65 figure it out now because if you are taking action on the motion now on the PUD, which sets the density at one-per-acre which was the result of deleting those four lots, then you have set it...You do need to kind of figure that out now. It’s... Jennifer Clary: Okay, so I will create a motion, I suppose, that will... Well, no I wouldn’t create a motion... Don Latham: Mr. Chairman, I am going to move to table this motion. Wayne Chamberlain: The motion is tabled for now; we will come back to it. Do you want to talk about the variances first to make it easier. Tim Ibey: I move 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 findings of fact in the staff report. Don Latham: Second. Wayne Chamberlain: Second by Don. Discussion? So Jennie, the only reason in this submission packet under the cul-de-sac length variance request, Tab 1. The question is: ”The granting of this variance does not result in the threat to public safety, health or welfare and is not injurious to other person’s property.” The response is: “The granting of this variance should not result in an increased threat to public safety, health or welfare and should not be injurious to other person’s property.” Which seems to be just a restatement of the question, but... Jennie Dixon: ...well that’s the conclusion at the end of the facts. In the list of facts under is that where your... Wayne Chamberlain: Yeah. Right. My question is: Is that based solely on the fact that this will be another subdivision and it will be a looped road? Jennie Dixon: No it’s based on the previous six or seven facts before that conclusion statement. Wayne Chamberlain: If it were—if the other subdivision did not go through, would this still be okay? Jennie Dixon: Let me read you Bob Rajala’s response that’s not in the packet; that is an e-mail to me on November 28. Because I asked him to clarify...Let’s see. Teddy Turn actually does not exceed the maximum. Beethoven, however, does by 50 feet. I wanted to double check that this is a concern under the circumstances of only exceeding the maximum length by 50 feet, and I see you are aware that future development may occur which may ultimately make a looped road in the area, so if the cul-de-sac length is a concern, please let me know. And he wrote back: Cul-de-sac potentially can cause a delay in response. The purpose for my inclusion of noting the length of the dead-end road in Sonata Park was to encourage the long-range plan of extending this to the next development, which will provide a through road; however, it was not my intent to hold up or challenge this development based on the length of cul-de-sac. Wayne Chamberlain: Okay. Don Latham: Question. Wayne Chamberlain: I’m not quite through. Don Latham: Oh, sorry. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 49 of 65 Wayne Chamberlain: So, it’s 1050 feet, but the block length is still okay, still under 400 feet? I didn’t measure it, I just...It sure looks long. Jennie Dixon: [Nods] Tim Ibey: And we do have the easements that connect to the next parcel. Jennie Dixon: Yes, they are shown on the plat. Wayne Chamberlain: The little dotted lines. Jennie Dixon: [Nods] Wayne Chamberlain: Okay, any other discussion? Jennifer. Jennifer Clary: Nick, is there any way that we could redesign that road a little bit to make it a little shorter, the 50 feet shorter, and turn that corner sooner? Does that make sense? Nick Kaufman: The answer to that is yeah, it could be designed so it’s 50 feet shorter. What we are concerned about is getting the highest propensity for road connection to adjoining property. And the further we hold that road from the adjoining property, and if residence occupy this piece before we develop the next piece, which doesn’t look like that because Duncan Meadows is going to come up here in a few months. When the people in this subdivision, I guarantee it, you’ve seen it time and time again, won’t want the traffic from the next subdivision and this subdivision. So getting the road as close as we can get it to that property line helps insure that we get the connectivity that we want. Jennifer Clary: Actually. I am talking about...So Teddy Turn, the turn from Teddy Turn to the Beethoven Lane. Is there a way we can cut that? Nick Kaufman: Hang on a sec. Jennifer Clary: Further, what is that...further south to reduce that length a little bit. I mean it seems it would follow the contours.... Nick Kaufman: ...the intersection has to stay where that… Jennifer Clary: ...it does? Nick Kaufman: Yeah. That’s a ...There’s a lot of grade issues at that intersection; that’s where that has to go. Jennifer Clary: Okay. Nick Kaufman: It’s a good question. Jennifer, the other thing we are trying to do there was to conform to Fish, Wildlife and Parks and Parks and Open Space comments to keep the draw open. And if we pull that intersection back down the hill which gives us the 50 feet, then we are putting it right in that open draw, which we don’t want to do. Wayne Chamberlain: Kevin. Kevin Blackler: Well, I guess the real question here is, is 50 feet going to delay response and what point...You know, it it’s 100 feet, you start to question whether it’s going to make a difference; but there’s a point where you, a little bit of fluctuation isn’t going to be that critical. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 50 of 65 Wayne Chamberlain: Okay. Don Latham: Question. Jennie Dixon: I could just point out that a cul-de-sac bulb is 70 feet in diameter. Wayne Chamberlain: In diameter. Okay, question’s been called. All those in favor say ‘aye’. [All Board members answered ‘aye’.] Opposed? [All Board members were silent.] The motion carried. Tim Ibey: I move 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 findings of fact in the staff report. It’s getting late. Jennifer Clary: Second. Wayne Chamberlain: Second by Jennifer. Discussion? Alan Ault: Point of Order. Wayne Chamberlain: Alan. Alan Ault: Aren’t we supposed to vote on... Wayne Chamberlain: We tabled the first... Alan Ault: No, we voted on two? Wayne Chamberlain: We did. Alan Ault: That we, the question was called... Wayne Chamberlain: ...on the variance... Alan Ault: ...and I thought we were voting on No. 2. The question was called, and I though we were voting to approve the question being called. Wayne Chamberlain: Oh, no, no. Alan Ault: Okay, so we were...So we weren’t doing roll call vote? Wayne Chamberlain: No, not on—not on the variance. Alan Ault: Thank you. Wayne Chamberlain: Are you okay with that? Alan Ault: Yes. Wayne Chamberlain: Okay. Discussion? Paul. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 51 of 65 Paul Sopko: I don’t’ think there is any disagreement that we need a sidewalk on the other side there. It’s just a matter of who pays for it, this developer or the next one. So...and I don’t know who should pay for it. I just think there should be a sidewalk there, and to guarantee there will be a sidewalk there, we should be asking this developer to pay for it, because if it isn’t built and the adjacent landowner doesn’t develop, then there’s no sidewalk. I was just kind of think out loud here, sorry. Wayne Chamberlain: I understand. Is there...Did I read in here, I forgotten by now, an SID on this one for Teddy Turn improvements? Jennie Dixon: If you vote to make them public roads, yes. Wayne Chamberlain: Yes. Paul Sopko: So, okay, that... Wayne Chamberlain: ...and if was staff that...staff’s recommendations—recommend them to be public roads. Jennie Dixon: Yes. Wayne Chamberlain: Yes. Alan. Alan Ault: So what you are saying, if I’m understanding this right, if these become public roads, we could have a SID and these existing property owners would get hit with the SID to put sidewalks in there. Jennie Dixon: I am not sure they how they would evaluate the benefit. Who... Alan Ault: ..it could happen? Jennie Dixon: I suppose, yeah. Are you talking about the Sonata Park residents? Wayne Chamberlain: No, the three single family dwellings. The reason we didn’t want those... Jennie Dixon: oh, I though Alan was talking about Sonata Park. Alan Ault: No, I am talking about the property owners on the south side of … Jennie Dixon: Oh, yeah. Sure. Alan Ault: So they could get hit with a SID? Wayne Chamberlain: Either now or later. Kevin. Kevin Blackler: You are recommending that these become public roads. What’s the benefit for the City...what’s the upside; what’s the downside? Jennie Dixon: On making them public roads or not? I requested the City Engineer to respond... I was sending e-mails madly, I think it was last week, to all the agencies who commented for issues that either I didn’t fully understand or wanted to clarify. And that was one of them. The City Engineer’s letter was not clear in what roads he wanted to recommend be public, and so I had to confirm, that in fact he wanted all roads in the subdivision plus the road connecting to Duncan Drive. My sense of when roads should be public is when you think there will be through connections to other areas, not just an adjacent subdivision like Duncan Meadows; but to other areas. So, I never ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 52 of 65 did get a response from the City Engineer and I can’t explain fully why they would want these to be public roads aside from the possibility of future connection somewhere. I am sorry, I don’t know the answer to that one. Kevin Blackler: Well, I guess after looking at the map, I don’t know where any future connection would end up being. Jennie Dixon: I agree. Kevin Blackler: So, yeah, that’s a tough one. Jennie Dixon: But it does also, I guess, alleviate the problem of receiving calls from folks, who despite the fact that they live on private roads call the City and complain about maintenance issues; and the City would rather just take over the maintenance, I think, than to deal with that. Wayne Chamberlain: Wow! Don Latham: Wow is right! Kevin Blackler: It seems like an expensive.... Wayne Chamberlain: So opposite of the County. Jennie Dixon: I can’t say. You know, I am speculating on...Without an answer from the City Engineer, I really can’t answer for sure. Wayne Chamberlain: Wow! Kevin Blackler: So the real question here is if we go ahead and approve…I don’t know where it is in here, and say that we are going to approve these as being City roads, these adjacent property owners could have SIDs placed upon them for the sidewalks. Jennie Dixon: They could. Wayne Chamberlain: Eventually. Kevin Blackler: They are innocent...they are innocent in this whole development. Jennie Dixon: Well, I think we just heard tonight that the entire length of Brahms and most of the length of Teddy Turn is adjacent to a land that’s gone even beyond considering a subdivision, the 31 acre Cleaves’ property, and is in preliminary development stages—planned development stages. Kevin Blackler: But that’s just hearsay, I mean, that’s something we can’t deal with here. Wayne Chamberlain: No. Kevin Blackler: We just don’t have it in front of us. Jennie Dixon: No, we don’t have anything. Kevin Blackler: So I can’t deal with that on that level. Wayne Chamberlain: But, just as an overarching global opinion, I think all roads should be City roads. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 53 of 65 Kevin Blackler: Well, I’m just curious, you know. Wayne Chamberlain: I would do away with, you know...I think private roads are a really bad idea and especially in an urban development area. This really isn’t County. I mean, it may look rural, but it’s adjacent to a city. I think the streets... Kevin Blackler: ...couldn’t you make an amendment to this that states that if the other development occurs, at that point you bring them all into the City... Wayne Chamberlain: ..they are already in the City... Kevin Blackler: …so that the sidewalks here are...so that the other adjacent land...the subdivider or some sort of a cost analysis/cost shift. I don’t know how you would do it at this point. Wayne Chamberlain: I don’t’ understand your question. Kevin Blackler: Well, I guess what I am saying here is, is that what if these other folks don’t develop for another 20 years? So they are going to be assessed with an SID to pay for these sidewalks if...possibly. Wayne Chamberlain: It’s possible. Kevin Blackler: So I don’t like SIDs. We have had them put on a property of ours; and you know it’s that unknowing. Tim Ibey: Well generally SIDs are assessed based on need, and if you have got three single-family dwellings on one side of the street, I am going to say they are going to really have to stretch seeing that they need to have a sidewalk on their side of the street, and I think that’s’ what we are discussion here is the sidewalk on the side of the street that is not developed at this point. I think the, for time sake here, the City part of the streets comes in the next—in the subdivision approval. So, right now, we just need to take care of the sidewalks, and I’m not seeing where there’s a lot of benefit or where an SID would be place upon three residents on this side. Wayne Chamberlain: Not after Hillview. Kevin Blackler: Sounds good to me. Wayne Chamberlain: Okay. Any more discussion? All those in favor say ‘aye’. [All Board members answered ‘aye’.] Opposed? [All Board members were silent.] The motion carried. Wayne Chamberlain: Variance Nos. 1 and 2 pass. Tim Ibey: Two and three. Wayne Chamberlain: Two and three, well those are the two variances. Tim Ibey: I move that the Sonata Park Subdivision be approved for a two-year approval period, based on the findings of fact and subject to the recommended conditions of approval. Wayne Chamberlain: Do we have to do the overlay, the PUD first? Do we have to bring the PUD back, I believe. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 54 of 65 Tim Ibey: I think what we are going to do is look at the approval, whether we are approving 34 or 38 units. And then at that point in time, we could go back up to the overlay. Is that correct? Jennie Dixon: I think that since this is an advisory body that you don’t, your actions don’t have to go in a specific order... Wayne Chamberlain: ...that works for me. Jennie Dixon: ...and it would make more sense to talk about the conditions... Don Latham: I’ll second the motion. Wayne Chamberlain: Okay. Seconded by Dan or a Don. Dan, nice going. Don Latham: Mr. Chairman, I would like to ask as we head in to this, which of the Conditions of Approval, by number, are we really concerned with; and I have some marked as, for example No. 7, No. 20, 22, 23, and 24; and if there are any others. Jennie Dixon: Wayne? Wayne Chamberlain: Yes. Jennie Dixon: Those were the four identified by the developer as causing some concern. Wayne Chamberlain: Yes. Jennie Dixon: I would also like to ask a clarification correction to Condition No. 1, based on a request from a resident in the area to simply say the same thing, but I think in a clearer way for Condition No. 1. And so I would have it read: Except for approved short courts, all roads within this subdivision and Teddy Turn between the 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. Wayne Chamberlain: That would be clearer, more clearer. Tim Ibey: So moved. Don Latham: Second. Wayne Chamberlain: Seconded by Don. Okay, let’s look at...Any discussion on that? All those in favor say ‘aye’. [All Board members answered ‘aye’.] Opposed? [All Board members were silent.] The motion carried. Wayne Chamberlain: Okay, [Condition] No. 7. It was recommended by the proponent that we change approved by City Parks and Recreation to approved by the City Engineer. Ms. Corday suggests that because of the nature of this detention pond in a park that City Parks should be more involved. Jennie. Jennie Dixon: So the applicant is requesting to have the approval by City Parks for the location of detention ponds. I tried to write the condition specifically so that the review and approval by Parks was simply location as it related to conflict with public pedestrian easement and removal of riparian or native trees and shrubs, and not, certainly not from an engineering standpoint of drainage retention/detention areas. The plat behind you, with the blue (the water color) is where the detention pond easement is proposed. The engineer over at WGM indicated that those ponds could ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 55 of 65 certainly be moved to a different location where it would not conflict with the ped walkway or the riparian vegetation. I don’t know if there is different information at this point, but that’s what I was told. Wayne Chamberlain: Well let me suggest that perhaps the wording change might be “the draininge detention pond shall be constructed with approval of City Engineer in a location approved by the City Parks and Recreation. So we get both... Jennie Dixon: Well Public Works is…They have the final review and approval of the entire drainage plans, and it’s in the condition, as well, at the end that the whole detention pond system is subject to their review and approval. Wayne Chamberlain: Oh, okay. Jennie Dixon: The location is what Parks and Rec looks at. Wayne Chamberlain: Okay. Nick Kaufman: Upon the explanation by Ms. Corday...Excuse me, for the record, Nick Kaufman. Upon the explanation from Ms. Corday earlier, we withdraw our concerns about 7. Wayne Chamberlain: Okay Great. Never mind 7. Tim Ibey: What number are we looking at now? Jennie Dixon: Wayne? Wayne Chamberlain: Yes. Jennie Dixon: Before you go to 22 through 24, I have to also imagine that Condition No 20 is a problem for the subdivider. Don Latham: Yeah, I have that marked. Jennie Dixon: Okay. Wayne Chamberlain: Actually, I was going to 19. Jennie Dixon: Nineteen, oh. Wayne Chamberlain: My concern with Condition No. 19 is, and I understand the rationale, but I’m not crazy about it. I’m not persuaded that, that’s a necessary thing to do. Tim. Tim Ibey: Well my problem with it is if you are going to buy open space, buy enough of it so that you’ve got the open space. Don’t start impeding or impinging on somebody else’s property. I mean, if you want the extra 100 feet; then instead of buying 150 feet, buy 350 feet, so you’ve got the 100 feet on either side. I mean, if I own a piece of property, I don’t get to say, well you can’t build within 100 feet of me, I’ve got set—you know there’re setbacks that I have to live with; but to come up with an arbitrary number of, gee whiz, the City owns this, so now all of a sudden the setback is 100 feet. I just don’t concur with that; it just doesn’t seem fair. They could get an easement by my property right now and the person next to me could sell it to them for open space and then that means that all of a sudden, my setback is 100 feet, instead of 25. It doesn’t sound...I could be all wet, but it just doesn’t sound fair. Jennifer Clary: Jennie, were did this come from, this 100 feet? I don’t remember. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 56 of 65 Jennie Dixon: The 1995 Plan…Let me go to a different slide. So on the…I seem to have lost my pointer, but on the western side of the property where it’s pinkish. That’s about a 300 foot width and that was placed there in recognition of, or acknowledgement of a separation for denser development from the City’s Open Space. Not saying that development can’t happen in that 300 feet, but if it’s going to happen, it needs to be one dwelling unit per 5 to 10 acres, that’s what the Plan said. And rather than take that literally, my recommendation for the 100 foot setback versus the 300 foot area there, was that some distances needed to acknowledge the fact that it’s within an Open Space cornerstone, and that we need to be sensitive to the Parks and Open Space designation and use as City Open Space, as well as the recommendation for lower density in that area. And along with that was a review of the proposal that shows a cul-de-sac street, Mozart Court, extending about 200 feet beyond where it would need to extend to serve the same number of lots. You could cul-de-sac it right here and create three lots on the end of that cul-de-sac or some similar configuration, and not have 200 feet of cul-de-sac to get to Lot 14, which brings a road within 30 feet of the City’s Open Space that is clearly, having worked on the 1995 Rattlesnake Plan, not the intent of that designation in that location. Wayne Chamberlain: Mr. Kaufman. Nick Kaufman: We are not opposed to the condition of the 100-foot setback. We got the staff report and we looked at that, and when I showed you some of our previous designs that had more lots, and we were actually holding the lot lines that 100 feet back, we think the basis of that recommendation is well founded. We had talked about using bargain sale opportunities to reduce the number of potential building sites in the subdivision in the vicinity of the cul-de-sac. That could be redesigned. Accommodating the 100-foot setback is not a hardship for us. Wayne Chamberlain: Thank you. I appreciate that it is not a hardship for you, it’s a hardship for me, sorry. Don. Don Latham: I was wondering about...do you have that previous slide? Jennie Dixon: What was it of? Don Latham: Well it showed...didn’t it show that about half of that 100 feet was actually ran way off up the hill? Jennie Dixon: So the Comp Plan? Don Latham: The southern half or is that in fact or is that part of the plan. Jennie Dixon: The Comp Plan map, Don, is that what you’re referring to? Don Latham: Boy, I am getting confused with all the maps we’ve got; but...yeah, there it is, Parks and Open Space. Isn’t half of that space there, which would correspond to the gulch, it’s not much of a gulch, but a gulch, and Bach Court. That part of it actually has much more than 100 feet on it. So, if you cut back Mozart Court, you wouldn’t necessarily have to cut the southern half, right. Jennie Dixon: Cut the southern half of what? Don Latham: Am I clear on this at all? Jennie Dixon: Well we were recommending a 100-foot setback from the entire, along the entire space Don Latham: From the entire space, yeah; but half of it there is already huge open space. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 57 of 65 Jennifer Clary: Yeah, but I think that Jennie’s point is well taken that Mozart Court is 30 feet from the Open Space Land, so what we are saying, we are letting cars and kind of encroaching that, and I think by the 100 foot and by the applicant not being opposed to it, we are actually protecting that a little bit, viewshed, everything. Don Latham: Never mind. Wayne Chamberlain: Alan. Alan Ault: But also be aware if we agree to this 100 foot, that’s going to carry up into the other sub...Duncan Meadows Subdivision. Wayne Chamberlain: Yeah, there’s plenty of room up there, though. It’s not an issue. Alan Ault: It’s just something to think about. Wayne Chamberlain: Thanks. Kevin. Kevin Blackler: Well I guess I also have a problem with 100 foot. You know, what are you looking at less than what 50 percent that’s got that small strip that runs up through there and how wide is that open space strip? Jennie Dixon: The strip is 150 feet wide. Kevin Blackler: That’s 150 feet wide itself Wayne Chamberlain: That’s the power lines. Kevin Blackler: So now you’re going to take another 100, so you have 200...I don’t know, I have a problem with it, but if the developer doesn’t mind, I guess it’s fine. I just wish there would be a compromise here. Wayne Chamberlain: I am not willing to make a motion on it, so let’s move on. Anybody want to move on 19? Okay, 20, Lots 35 through 38 shall be deleted. Tim. Tim Ibey: Nick, is there another place that you’re looking to put four lots, or is this...I mean I can see where this is actually in riparian area. I mean it looks to me as though it’s in riparian area. Nick Kaufman: For the record, Nick Kaufman. When we received the staff report, we actually looked at the subdivision, the project engineer and myself; and it is feasible for us to relocate those lots in another portion of the subdivision and still maintain the width of the central corridor open space, the 100-foot buffer from the linear City Open Space to the west and accommodate the other conditions and concerns that have been raised this evening, with the exception of course that the neighbors have raised that there feeling is that there is too many lots here. We can redesign this; that’s why I gave three options. I talked about the building envelopes. Jackie’s opinion was that the building envelopes wouldn’t work from her site analysis. I talked about the bargain sale agreement that wasn’t palatable, and again, I am assuming that Jackie’s assessment is correct here, even though I’m—I’ve got two different opinions here. So, if it is riparian, then the bargain sale isn’t a savory option because we wouldn’t be able to develop it anyway. So the third viable option would be to relocate those to a new location. Tim Ibey: And that would be the most…I’m looking here, and I am just wondering if that in fact is what you want to do. Do you want to delete them or would you rather move them? ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 58 of 65 Nick Kaufman: I would rather move them. Tim Ibey: Thank you. Jennifer Clary: How many units, dwelling units, would you have on the site if you were to have one dwelling unit per 2 acres? Jennie Dixon: One-per-two, seventeen. Jennifer Clary: Seventeen. Okay. Jennie Dixon: If you want to...I tried to write this so that if you wanted to allow the developer to accommodate those four lots elsewhere, that you could simply add to this condition that lots 35 through 38 shall be deleted from their proposed location and maybe recouped within the proposed lotted area shown on the plat. Tim Ibey: Well I will throw that out as a motion. Kevin Blackler: I’ll second. Wayne Chamberlain: Second by Kevin. Discussion? Jennifer. Jennifer Clary: I don’t know, I just kind of think we should delete the lots. I think it’s pretty dense. Wayne Chamberlain: Alan. Alan Ault: Well I am not going to vote yes for taking four lots and move them. I want to see what the plan is because there might be other things that can come up, and we wouldn’t see that. It would go in front of City Council. Wayne Chamberlain: That’s correct. We have to trust City Council. Tim Ibey: Well yes, we would have to trust City Council to make that decision; but for me, I am seeing something that is a costly infrastructure that I don’t think is being used very well here at all, and that’s sewer and water. When you’ve got everybody wants it, and then they don’t want it. But they don’t want the City, is what they don’t want. They want the sewer; they just don’t want the City. But you’ve got the City and the sewer here, so you need the density. And I think that...I mean I don’t know the people on the City Council that well, but they are the ultimate decision makers in this anyway. So I would just as soon allow them to try and get the additional four lots in there in a way that City Council would vote on it: yes, no, or however they want to vote on it. But I would like to leave that option open. Wayne Chamberlain: Yes. Oh, I’m sorry, Jennie. Jennie Dixon: And I am not just sort of advocating for recouping the four lots that I recommended for deletion, but if that was the direction you wanted to go to be able to keep—retain the 38 lots, Alan, I am wondering if the way I am trying to phrase the motion for Tim is to recoup those lots within the already proposed lotted area on the subdivision plat so that it’s not...I mean the idea is it’s not supposed to generate a new impact that hopefully won’t create some problem, unforeseen problem that you’re not already aware of. Wayne Chamberlain: Is that because the PUD allows flexibility in lot size? Jennie Dixon: The RLD-2 does. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 59 of 65 Wayne Chamberlain: The RLD-2 allows flexibility in lot size. Jennie Dixon: Yes. And so with lot sizes upwards of 15,000 to 18,000 square feet, you can still create fairly large lots, if you just cut one in half. Wayne Chamberlain: It would be a true urban subdivision then. Kevin, I’m sorry. Kevin Blackler: I would like to ask Mr. Kaufman a question. Wayne Chamberlain: Nick. Kevin Blackler: By reconfiguring these lots, by adding into your existing already buildings there, are you going to be able to still get...is it going to impede your retail cost or those lots, retail costs? Nick Kaufman: No it’s not. Can I ask Jackie Corday to come up to the podium for a moment? Jackie, do you recall, because I didn’t do the riparian resource on this. Do you recall whether that triangle right there contains sensitive vegetation, because we could take these two lots and slide them there and then relocate these two lots elsewhere in the subdivision. Jackie Corday: Let me check the map. Jennie Dixon: I can show you the center line of the draw. I tried to draw in at that location. Nick Kaufman: I think you are correct, if I could show it on Google, but. Jackie Corday: Yeah, it’s hard for me to say. But where I had suggested where you could recoup them is...Jennie if I could borrow [pointer]. I had made a suggestion that if the governing body was going to make a decision to go that way to recoup, one of the places that it made sense was here, because this land is now surrounded by three sides by houses, which pretty much makes it...it doesn’t have an value left for open space when it is completely surrounded by houses. There’s this spot here, as well; and then as Jennie mentioned, there’s really big lots where you could easily recoup some more here. I don’t know if you want to get into redrawing this tonight, but that’s where I would rather see them go, if you were going to recoup. Tim Ibey: I would rather not redraw it tonight; I would rather allow Nick to redraw it and bring it to Jennie and have it taken to yourself and City Council. And if the four lots don’t work, then we are down to 34 lots, but at least give the fact that you’ve got sewer in there, I would like to see it maximized as much as possible. Keep those City people in the City not in the County, you know. [laughter] Jennie Dixon: So is there a motion? Wayne Chamberlain: Yes. Jennie Dixon: And that’s to delete them from their current location but recoup them within the lotted area shown. Wayne Chamberlain: That’s correct. Don Latham: Second. Tim Ibey: It was already seconded, by Kevin. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 60 of 65 Jerry Petasek: I am going to vote against this motion because I just want them gone, and I don’t want the current density where it’s at. I am still trying to formulate all the reasons in my head. It has a lot to do with single point of access to these homes, and open space and everything around it, and how it’s configured. But heads up. Wayne Chamberlain: Jennifer Jennifer Clary: I agree with Jerry and to with the next proposed Duncan Meadows and the proposed amount of lots and it’s all one point of access there as well. And I feel like the four lots should be gone. Wayne Chamberlain: Okay. Any other comments. Tim Ibey: I think you have plenty of open space. You’ve got an entire...I don’t know how many acres... Jennie Dixon: ...almost 16... Tim Ibey: ...and they have definitely met there parkland dedication area. Wayne Chamberlain: Well, in order to...Mr. Snavely. Don Snavely: I’m sorry to interrupt. When Jennie says, live area, we might be using some of what’s shown as park space in there, as Nick just pointed and Jackie pointed out, that little piece in there, so I am assuming your putting that as possible... Jennie Dixon: No. I am talking about where the yellow is, so if you don’t mean that, then... Wayne Chamberlain: I think making the lot line smaller. Don Snavely: Okay, so leave the park space [inaudible away from microphone] Wayne Chamberlain: That will be for you guys to decide later. Jennie Dixon: Then the condition... Wayne Chamberlain: But the condition says in the lotted areas... Jennie Dixon: ...and that’s the area shown in yellow. Wayne Chamberlain: Yes, but before we vote, let me just say that I am not going to support this either. It seems like kind of a strange argument for me to making, but I really think there’s too many lots in this one and in the next one coming up for the interface area. I would like to see the entire thing developed at a much lower rate of density, even though sewer is there and I agree as a city taxpayer, I’d like to get as many people hooked on as possible to keep my costs down. So, I would on this particular motion, I’d have to just vote to have them go away. But I just wanted to make that comment. Any other comments? Roll call vote, please. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 61 of 65 The vote was as follows: Alan Ault No Jennifer Clary No Jerry Petasek No Kevin Blackler Yes Tim Ibey Yes Paul Sopko No Wayne Chamberlain No Don Latham Yes The motion failed with 3 votes of ‘aye’ and 5 votes of ‘nay’. Wayne Chamberlain: The motion fails, so Condition 20 stays as written. Jennie Dixon: So are you going to make any other motions on Condition 20? Wayne Chamberlain: I’m not. Is someone? Jerry Petasek: Are you referring to tying in some of those weird park spaces that are... Jennie Dixon: Yeah. I’m sorry, I’m tired. You’re just going to leave it as is. Wayne Chamberlain: Unless somebody else has a motion? Okay. Don Latham: I am still not clear on what this does. Wayne Chamberlain: It deletes four lots. Don Latham: It deletes four lots, but does it leave the total number of lots less? Wayne Chamberlain: Yes, to 34 from 38 to 34 as proposed. Don Latham: Whatever. Wayne Chamberlain: Okay, so the next one was... Don Latham: It’s not going to be any less ugly. Wayne Chamberlain: [Condition Nos.] 21, 22, 23? Jennie Dixon: [Condition Nos.] 22, 23, 24 the three riparian conditions. And if I could maybe just address Condition No. 22 is the requirement for submitting a Riparian Management Plan that some of the testimony pointed out is required, and because of the differences of opinion about whether it’s riparian, and I also was not the original case planner, I probably would have been much more insistent, but at this point, given that there is riparian vegetation on the site, whether or not it is in the location of those four lots, a Riparian Management Plan is required and they need to submit the management plan. That’s Condition No. 22 Wayne Chamberlain: Yeah. Twenty-three explains it? Jennie Dixon: Twenty-tree designates the area where you have pretty much...well, you’ve deleted those four lots. Designates that area as a “no-build zone” and to put that in the covenants and on the plat. Wayne Chamberlain: Yeah. Twenty-three substantiates 20. Jennie Dixon: Yes, and also sets the parameters for the Riparian Management Plan in 22. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 62 of 65 Wayne Chamberlain: Okay. Jennie Dixon: And then 24 defines the “no-build zone.” Wayne Chamberlain: Right. Are there any other conditions that? Those are the only ones I have. Tim Ibey: I would like to restate the motion. Wayne Chamberlain: Okay. Tim Ibey: I move that the Sonata Park Subdivision be approved for a two-year approval period, based on the findings of fact and subject to the recommended conditions of approval as amended. Don Latham: Second. Wayne Chamberlain: Second by Don. Discussion? Kevin Blackler: I am going to vote for this. You know, everybody in this valley has got to do their part. We just went ahead and put 600 houses out there on Lower Miller Creek where there were the same complaints. If I were [inaudible] listen to everybody that stood up here and had a problem with this subdivision, we might as well stop all subdivisions in the valley because none of them are going to meet any kind of health and safety, if you listen to the criteria and whatever. So every part, even if it’s the Rattlesnake, I don’t care where it’s at, they are going to have to do their part to participate in putting homes in this valley, otherwise our costs are going to go skyrocket around here and we’re not going to have enough homes to supply all the people for the next 20 to 30 years after we are all dead. And I just find that this area should not be any crown jewel of the community. I am going to support it. I am sorry we lost four houses there. I agree we’ve got sewer there, we should take advantage of it, and just because it’s the Rattlesnake doesn’t mean it’s a golden goose and we can’t touch it. So I will support it. Wayne Chamberlain: Thank you, Kevin. Anyone else. Paul. Paul Sopko: Well first I want to say that this is one of those tough ones that I don’t like to deal with number one because it’s unzoned. And I’ve said this before; I hate these unzoned lands around the City. They shouldn’t be unzoned, they should zoned and maybe would make our job a lot easier. Then we wouldn’t have to be dealing with this whole idea of, we have to go by the comp plan; we don’t have to go by the comp plan. I have good friends on both sides of this issue, so either way I am going to vote tonight, I am not going to get any sleep. So, they both made some very good arguments. So whenever that happens, I try to just go back to my core values and I try to be consistent with some of the votes I’m made before. The comp plan argument I don’t really put a lot of weight on. I agree with Dave when he said why I even put my time into this. I decided 5 years ago I would never get involved with the comp plan because it is a waste of time. If you want to control what is going to happen on your land or your neighbor’s land, zone it. The heck with the comp plan process; I think wastes people’s time. It makes them think they are being involved when it comes right down to it there really not. So that is not important to me the whole idea of the sewer guiding growth with Wayne brought up before, I still think it does, it’s happening out in Orchard Homes, now people in the Rattlesnake are feeling it, it does drive growth. If that sewer isn’t there, in a lot of the Orchard Homes developments if that sewer wasn’t going there they wouldn’t be able to develop it. This one here, one for one acre that what’s we are voting on, you can put a septic in at one for one acre. So really like Tim said the sewer is not getting its value. I already voted to delete the lots, I think that was a concession. I would like to make both side happy, I have to say that sounds like a 5-year-old’s YMCA soccer game where nobody wins or looses, but when it comes down to it when ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 63 of 65 both sides are equal that is what I try to do, I already voted to delete the lots so there’s less density, so I’m going to vote for the subdivision because I think in general it is okay for the area like Kevin said everybody’s got to pay their fair share. Wayne Chamberlain: Anyone else? It’s a keystone. Don Latham: I just find it amusing. Wayne Chamberlain: Well yeah, you live out in the County; you live out in Ninemile. Don Latham: Well I think this is all part of the City’s Plan, and they are caring it out quite nicely. I was really amused by this little strip of land that enabled the City to annex Rattlesnake. I kind of was here when it happened but I wasn’t paying a lot of attention and so now their little plan is coming to fruition. And I will have to stimulate the people that live between me and the City to form another city. I think it’s the only way we can escape. Wayne Chamberlain: Thank you. Roll call vote please The vote was as follows: Alan Ault Yes Jennifer Clary Yes Jerry Petasek Yes Kevin Blackler Yes Tim Ibey Yes Paul Sopko Yes Wayne Chamberlain Yes Don Latham Yes The motion passed by unanimous vote Don Latham: Mr. Chairman, I move that Number 1 be removed from the table. (inaudible) Second Wayne Chamberlain: Okay, re-read it please. Tim Ibey: I move that that the property be zoned RLD-2 with a PUD Overlay, based on the findings of fact and subject to the recommended conditions of rezoning approval. Paul Sopko: Second. Wayne Chamberlain: Second by Paul, discussion Jennie Dixon: With the correction of as recommended by staff. Wayne Chamberlain: Yeah and to Sections A(1) and A(2) Jennie Dixon: General Standards, thank you. Jerry Petasek: Actually I am getting so tired I thought we just voted on number one. But that is okay, I thought I was paying attention. I guess I want to echo Paul’s comments. But I do want to get them out there. I think this is a tough one. You know the Rattlesnake has one point of access from the City. I think the sewer does drive density and when we have sewer services we should have higher density. As most people know, I’m kind of a big proponent of density in the City. I think it is a good thing to concentrate density there. I also agree that everyone within the City or near it needs to help pay their way and help make Missoula a livable place, which means more homes for everyone. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 64 of 65 I think that there is a lot of open space around this area whether our not it has been dedicated by this particular developer either by proxy or however it was done, but even within the subdivision there is a lot going on, and it looks like there has been attention paid to detail by the way the units, the lots I should say are configured. It’s an odd shape and it looks like there was some though put into it. It’s late I just wanted to get my two bits in for why I already voted yes on it. It was tough and I think when I first started out, I wanted to try to...I wanted to vote no to say less density and have them bring it back or whatnot, but then it got late and you beat me down. Wayne Chamberlain: Kevin. Kevin Blackler: Well I have to concur with Jerry. I thought we were voting for the park too, I must be tired. This property is...has had some weird things going on with the sewer permits that were given. There were some exchanges going on, so I don’...I know this was driven by the sewer out here, but it’s got a lot of stuff that has been carried along with this property. I don’t necessarily know if this one is driven by, I know that density is driven by sewer, but something happened here 10 to 15 years ago that just leaves this thing in a muddled mess. Between the City making agreements with the landowner and the whole thing that has come around with it, so I’m kind of glad to see it move forward and get it off the books. Wayne Chamberlain: Don. Don Latham: You’re right and it makes me glad I’m not a serious conspiracy theorist. Wayne Chamberlain: Clearly, a long time ago or some year ago, it was the vision of the 1980’s to bring sewer to all of the Rattlesnake and develop all of the Rattlesnake more densely. Comp plans and growth plans are organic in nature and are meant to be changed and changeable to reflect both current social mores and technologies and everything else. I can see how in 1995 the people that were then living in that area would want to reduce the density significantly. As a phase into the wilderness area, I can understand why conservationist groups would say that only makes sense when you have all of these species that want to come out. I was just showing Don in this last month’s Nature Conservancy. The title of it is “Three Conservationists Go Into a Bar.” Well they actually did, they went in to the Kettle House and were talking about why the Rocky Mountain Front was a special place because of 600 species. It is one of six places in the country that hadn’t had any extinctions since Lewis and Clark. My point is simply that everywhere in the City or the urban growth area is not equal to every other place in the urban growth area, merely because there is black line on a map that says this is the sewer service area; therefore, we must build as densely as possible. I don’t find that an equivalent argument. For me it makes sense there be a phase-in; but it is really hard considering how badly I beat up those poor people from Target Range when they came before us. I was kind of merciless to them, but they proved me right. They tried to succeed from the City two weeks later. I understand and I sympathize with the local residents, but this has been an evolutionary process and the original framers, if you will, clearly had this land envisioned to be developed more densely than one house for every 5 acres, which requires sewer to make that happen, and they are actually doing that, putting that sewer across. Now that’s my real problem and I’m going to be on the City Engineer to make sure that’s done very, very well, because I’m on the receiving end of that pipe. Do not go underneath the creek. This question is only for the PUD Overlay, the number one which locks it into one-per-1-acre, and I’ll take that away as a limping victory. ---PAGE BREAK--- Missoula Consolidated Planning Board December 4, 2007 Page 65 of 65 Roll Call vote please. The vote was as follows: Alan Ault Yes Jennifer Clary Yes Jerry Petasek Yes Kevin Blackler Yes Tim Ibey Yes Paul Sopko Yes Wayne Chamberlain Yes Don Latham Yes The motion passed by unanimous vote Wayne Chamberlain: This will be heard at City Council on December the 10, 2007. Thanks for everybody’s participation. VI. COMMUNICATIONS AND SPECIAL PRESENTATIONS Wayne Chamberlain: Communications and Special Presentations? Seeing none. VII. COMMITTEE REPORTS Wayne Chamberlain: Committee Reports? Seeing none. VIII. OLD BUSINESS Wayne Chamberlain: Old Business? Seeing none. IX. NEW BUSINESS AND REFERRALS Wayne Chamberlain: New Business? Next week, next time we have to have nominations for President and it has to be a County person. Not next week, next time, on the 18th. Paul Sopko: I think I’m the one who started the alternation between County; I don’t think we ever codified in the Bylaws. So it doesn’t have to be County, it was just the trend we were going. Wayne Chamberlain: While you think about this for a second, let’s look and make sure there right here. We’ll make sure next time. XI. ADJOURNMENT The meeting adjourned at 12:27 am Respectfully submitted, Sharon E. Reed Shelley Oly Denise Forestek Nina Cramer Administrative Secretaries Office of Planning and Grants