Full Text
1 Ogden City Council Work Session: May 9, 2017 PROPOSED REZONE OF PROPERTY AT 822-848 WEST 27TH STREET FROM R-1-5 TO C-3/CO Purpose of Work Session: To review the proposed rezone Planning CommissionRecommendation Approval the amendment (5-0) Executive Summary A petition has been submitted by Mark Kitchen to both amend the West Ogden Community Plan and to rezone properties between 822 and 848 West 27th Street from R-1-5 to C-3/CO. The petition to amend the Community Plan includes adding language to allow for a C-3/CO zone and outlines the conditions under which development may take place. The petition to rezone the property is the action to formally execute the rezone discussed in the community plan amendment. Each item will be reviewed and decided separately by the Council. If the Council does not agree with and does not approve the community plan amendment, in accordance with best planning practice the Council should not approve the rezone petition as the rezone would then not be consistent with the community plan. Background The petitioner, Mark Kitchen, owns Voyager Trailers, an existing business in West Ogden, and has submitted a petition to amend the West Ogden Community Plan and to rezone property on 27th Street near his existing business. Mr. Kitchen has expressed an interest in developing an office warehouse development near his business to both help with his own expansion and to develop additional space for lease. In order for him to do this, an amendment to the community plan must be made. The existing zoning on the subject properties is R-1-5 (Single- family Residential) and would not allow for such a product. The proposed amendment allowing for a commercial zoning on the property, and in the area, would allow for such a use. West Ogden Community Plan The West Ogden Community Plan was developed through 2013 and adopted in 2014. The plan, being one of the more recent plans, had significant public involvement and reflected much of what is currently planned in West Ogden. The anticipated full interchange at 24th Street ---PAGE BREAK--- 2 Ogden City Council Work Session: May 9, 2017 and I-15 will bring much change to the West Ogden community. This potential interchange influenced much of the West Ogden plan. In the plan, there was discussion about future business development in and around the interchange itself as well as throughout the neighborhoods adjacent to the future interchange. The future land use map included in the plan shows a large area, including the subject area, planned for future small box neighborhood commercial. The zoning for this kind of land use would generally be C-1, or Neighborhood Commercial. While the petition proposes a C-3, or Regional Commercial, zone, it also includes proposed restrictions through the conditional overlay that would limit the impact and range of potential uses which would bring any future development into alignment with the general intensity and scope of a C-1 zone. Rezone and Conditional Overlays As discussed, the plan initially called for small box neighborhood commercial in this area. The proposed rezone is to a C-3 zone which would not normally fit into that category. The proposal, however, includes the use of a conditional overlay. The conditional overlay, along with a development agreement, would narrowly tailor what would be allowed on the property and would limit the impacts of those allowed uses. The conditional overlay and associated development agreement would, in essence, bring a select few uses from the C-3 zone into the C-1 zone and would address the potential impacts of those uses to ensure that the uses’ impacts are more consistent with the type of impacts that may occur with uses included in the C-1 zone. The goal of the conditional overlay zone and the development agreement is to allow what the petitioner would like to do but to limit it in such a way that the development will meet the intent of the community plan to develop small box neighborhood commercial. Current Proposal The current proposal is to rezone four properties, 822 West 27th Street, 830 West 27th Street, 850 West 27th Street, and 848 West 27th Street, from the current R-1-5 zone to C-3/CO zone. The approval to rezone would take place with the approval of the development agreement. The development agreement sets forth standards that would set the parameters of development rights on the property, establish certain site design standards, outline the approvals and permitting process, and establish general provisions applicable to the City and the petitioner. ---PAGE BREAK--- 3 Ogden City Council Work Session: May 9, 2017 Some of the more significant elements of the development agreement include: Uses allowed under the development agreement include: o Warehousing; o Retail sales businesses excluding retail tobacco specialty business; o Professional or business office excluding short term loan business; o Manufacturing of products limited to assembly inside of an enclosed building only with an accompanying office or retail space; o Contractor shop; and o HVAC sales and service. Building and architectural standards (included as Attachment B – Concept Plan) including: o The use of CMU for exterior walls, with a maximum of 20% wall surface being accent materials. o Maximum building size of 20,000 square feet with individual tenant sizes of 6,000 square feet. o Rooflines/pitches similar to single-family homes in the area. o Roof materials may be metal or asphalt shingles. o Building height may not exceed 30 feet. o Landscaping must be provided and maintained as depicted in the Concept Plan (Attachment More restrictive standards of either the C-3 zone or the standards included in the development agreement regarding: o Light pole height o Down directional lighting on lights in the parking lot and on the building; o Dumpster enclosures constructed of CMU matching the building and located in a manner that is not visible from the public street; and o No outdoor storage of materials, displays or finished products are permitted on the property. All other approvals required through the course of development still apply. ---PAGE BREAK--- 4 Ogden City Council Work Session: May 9, 2017 Owner is still required to obtain all necessary permits. Permit approvals and the beginning of the construction of the project is required within one year and completion of the project must take place within two years. Explanation and process or remedying delays, default, or breach of agreement including a reversionary clause in under which the City may initiate proceedings to rezone the subject property back to the zoning designation that existed prior to the agreement. Extension options. Agreement that the development agreement runs with the land and applies to future property owners. The development agreement also includes several attachments. These include: Attachment A – Subject Area. This declares which properties are formally part of this agreement. The subdivision lots included in the agreement include many smaller parcels that have previously been consolidated into the existing four lots. The lots are shown as the Land Serial Numbers in the agreement. Attachment B – Concept Plan. The concept plan included in the agreement includes a concept site plan showing the general location of the proposed building on the property as well as photo concepts of the type of product the petitioner is proposing. The photographs show an office warehouse use with CMU construction as required in the agreement. The illustrations do not, however, include the pitched roof that would resemble residential homes in the area. That would have to be addressed with the review of the plans by the Planning Department. Planning Commission The Planning Commission reviewed the petition at the April 5, 2017 meeting and forwarded a recommendation of approval to the Council with a vote of 5-0. The Commission made its recommendation with the ---PAGE BREAK--- 5 Ogden City Council Work Session: May 9, 2017 findings that the request is consistent with the amended plan and community policies. Public Comments One comment was received by the Planning Commission at the April 5, 2017 meeting. Ms. June Henson indicated that she was supportive of the rezone. Issues for the Council Because this is a two-part petition, the Council should have a particular focus on the community plan amendment. If the Council agrees with the proposed changes to the community plan, new policies and goals for the West Ogden community would then be set. If these policies are in place, the rezone is a logical next step in the implementation of those policies. The rezone, particularly with the conditional overlay and development agreement, should be reviewed by the Council with an eye on how the specific use limitations and site development standards included in the development agreement would help to ensure that the goals proposed in the community plan amendment are met. If intent of the community plan amendment is to narrowly allow a select few uses with restrictions to take place in the community without substantially changing the goals of the West Ogden Community Plan to develop small box neighborhood commercial development, the conditional overlay rezone should be reviewed to ensure that development in the area will be consistent with that goal. Attachments 1. Transmittal 2. Ordinance 3. Planning Commission Report 4. Petition 2017-7 Council Staff Contact: Glenn Symes, AICP (801) 629-8164 ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- 1 AGREEMENT FOR DEVELOPMENT OF LAND AT 822 TO 848 WEST 27TH STREET, OGDEN CITY, UTAH This Agreement for development of land, hereinafter referred to as “the AGREEMENT,” entered into this day of 2017, between Ogden City, a Utah municipal corporation, hereinafter referred to as “the CITY,” and Mark Kitchen, hereinafter referred to as “the OWNER”. RECITALS WHEREAS, in furtherance of the objectives of the Ogden City General Plan and the West Ogden neighborhood plan, the CITY has considered an application for a zone change on certain real property located at approximately 822 to 848 West 27th Street, in Ogden City, which property is hereinafter referred to as the “SUBJECT AREA,” from its present zoning of R-1-5 ( single family residential) to C-3/CO (Regional Commercial, Conditional Overlay Zone), in accordance with the provisions and requirements of Title 15 Chapter of the CITY’s zoning ordinance; WHEREAS, the OWNER has presented to the CITY a general proposal for development in the SUBJECT AREA, which provides for development in a manner consistent with the Ogden City General Plan and the West Ogden neighborhood plan; WHEREAS, the OWNER desires approval by the City Council of the C-3/CO zoning for the SUBJECT AREA; WHEREAS, the CITY is willing to grant the approval of such rezoning subject to the OWNER agreeing to certain requirements and restrictions of use and development within the SUBJECT AREA, which requirements and restrictions are intended to: 1. Provide more specific land use designations and land development suitability by eliminating or restricting potential uses otherwise allowed in the underlying zone; 2. Provide more restrictive site development standards than are required in the underlying zone, which may include additional standards regarding landscaping, fencing, density, setbacks, or the height, square footage or number of buildings; ---PAGE BREAK--- 2 3. Provide additional protection to surrounding property and associated property values; and 4. Provide for the general traffic circulation needs or other required public facilities within and for the benefit of the SUBJECT AREA. WHEREAS, the CITY believes that the SUBJECT AREA cannot be developed effectively due to a number of factors, including: its location in West Ogden next to manufacturing uses, the isolation of the area in terms of traffic circulation and the need to protect existing residential uses and buffer those uses from industrial uses, and the lack of market driven forces to implement change; WHEREAS, development in the SUBJECT AREA pursuant to the terms of this AGREEMENT is in the vital and best interests of the City and the health, safety, morals, and welfare of its residents; WHEREAS, the OWNER agrees and desires to proceed with the development and use of the SUBJECT AREA subject to the terms and conditions of this AGREEMENT. NOW THEREFORE, each of the parties hereto, for and in consideration of the premises and agreement of the other party hereto, does hereby covenant and agree as follows: ARTICLE 1 DEFINITIONS The following terms have the meaning and content set forth in this ARTICLE I, wherever used in this AGREEMENT: 1.01 “CITY”. The “CITY” shall mean Ogden City, a Utah municipal corporation. The principle office of the CITY is located at 2549 Washington Boulevard, Ogden City, Utah 84401. 1.02 “CONCEPT PLAN”. The “CONCEPT PLAN” is the plan depicting certain conditions and restrictions of development by the Ogden City Planning Commission and Ogden City Council, pursuant to the terms of this AGREEMENT, attached hereto as Attachment and made a part of this AGREEMENT by this reference. The CONCEPT PLAN, depicting the conditions and restrictions of development, is intended to depict the actual ---PAGE BREAK--- 3 location of buildings, vehicular accessways, parking lots, required landscaping, or other improvements, to meet the needs of the OWNER and to comply with applicable zoning regulations. 1.03 “OWNER”. “OWNER” shall mean Mark Kitchen. 1.04 “PROPOSED DEVELOPMENT”. The “PROPOSED DEVELOPMENT” includes all development of the SUBJECT AREA. 1.05 “SUBJECT AREA”. The “SUBJECT AREA” shall mean the parcel or parcels of real property situated in the SUBJECT AREA, more particularly shown on the map and described in the SUBJECT AREA legal description, attached hereto as Attachment ARTICLE II CONDITIONS PRECEDENT 2.01 This AGREEMENT shall not take effect until: 2.01.1 The OWNER has established that it owns all of the property within the SUBJECT AREA and has combined the property into a single parcel; 2.01.2 The Ogden City Council has approved the AGREEMENT as a condition of such rezoning of the SUBJECT AREA to C-3/CO; and 2.01.3 The Mayor has executed this AGREEMENT on behalf of the CITY. ARTICLE III OWNER COVENANTS REGARDING FUTURE DEVELOPMENT AND USE 3.01 The OWNER, and the OWNER’S successors and assigns, hereby waive the right to use or occupy the land within the SUBJECT AREA or to use, occupy or erect thereon any building or structure designed, erected, altered, used or occupied for any use other than the following uses, notwithstanding the fact that other uses or densities may be otherwise allowed in the C-3 zone as either a permitted or conditional use under existing or future zoning regulations. Allowed uses are limited to: 3.01.1 Warehousing; 3.01.2 Retail sales businesses excluding retail tobacco specialty business; 3.01.3 Professional or business office excluding short term loan business; ---PAGE BREAK--- 4 3.01.4 Manufacturing of products limited to assembly inside of an enclosed building only with an accompanying office or retail space; 3.01.5 Contractor shop; and 3.01.6 HVAC sales and service. 3.02 The OWNER hereby waives the right to use, occupy or erect upon the SUBJECT AREA any structure designed, erected, altered, used or occupied which does not comply with the following site development standards: 3.02.1 The building shall use integral colored concrete masonry units (CMU) for the exterior wall surfaces. CMU may be split faced, honed or other textured surface used individually or in combination on the exterior walls. A maximum of 20% of exterior wall surfaces may have accent materials of stucco type, or hardi board type materials if desired. Building elevations substantially complying with this requirement are depicted in Attachment B (the CONCEPT PLAN). 3.02.2 The maximum building size of any structure is 20,000 square feet. Separate individual units inside the main building shall not exceed 6,000 square feet in unit size. The building shall not appear as a solid mass and shall have emphasis placed upon providing visual relief by varying facades of the building. 3.02.3 The rooflines shall reflect the pitch of the single family homes in the area. 3.02.4 The roof material may be metal or asphalt shingles. 3.02.5 The height of any building shall not exceed 30 feet, as calculated under Ogden City zoning standards. 3.02.6 Landscaping shall be provided and maintained on the site and along the street right-of-ways as shown on the CONCEPT PLAN in a clean and manicured manner. 3.03 If a building is removed from the site the design and architecture of any proposed new building shall be reviewed and approved by the planning commission to meet the provisions of this Agreement 3.04 Unless a more restrictive requirement applies or is imposed for development in the C-3 zone, the following standards shall apply in the review and approval of the site plan, building plan or other permit related to the development of the subject area. 3.04.1 Light poles in the parking lots shall not exceed fourteen feet (14’) in height. 3.04.2 Light fixtures in the parking area or on the exterior of the building shall have an exterior design directing all light toward the ground and a shield that directs light away from adjacent dwellings. 3.04.3 Any dumpster enclosure shall be constructed of CMU matching the ---PAGE BREAK--- 5 building exterior and located in a manner that is not visible from the public right of way. 3.04.4 No outdoor storage of materials, displays or finished products are permitted on the property. 3.05 Except as modified in this Agreement, all other zoning standards of the underlying zone apply to the SUBJECT AREA. ARTICLE IV CITY’S UNDERTAKINGS If this Agreement is approved by the Ogden City Council as provided in Section 2.01, the zoning on the SUBJECT AREA from its present zoning of R-1-5 to the C-3/CO zoning over the entire SUBJECT AREA as described in an approved ordinance of the Ogden City Council is subject only to the terms and conditions of this Agreement. Upon execution of this Agreement by the Mayor and the OWNER, such rezoning shall immediately take effect. ARTICLE V GENERAL REQUIREMENTS AND RIGHTS OF THE CITY 5.01 CITY Approval Required. The development plans, and any changes thereto, must be approved by the CITY pursuant to the requirements of the Ogden City zoning ordinance and all other applicable provisions of the Ogden City Municipal Code. In addition to any standards, requirements, or regulations imposed by ordinance, the development plans shall also be reviewed by the CITY to determine compliance with the terms of this AGREEMENT and the CONCEPT PLAN approved herein. This approval is in addition to any required CITY approval which is directed to zoning, engineering or structural matters or compliance with building codes and regulations or applicable City, State or Federal law relating to land use or construction standards. The CITY’s determination, respecting compliance with the terms of this AGREEMENT and the CONCEPT PLAN approved herein, shall be final; provided that OWNER reserves all rights as to the appeal of any administrative determinations of the CITY. 5.02 Issuance of Permits. The OWNER shall have the sole responsibility for obtaining and/or seeing that all necessary permits are obtained and shall make application for such permits directly to the Ogden City Community Development Department and other appropriate departments and agencies. The OWNER shall timely submit and, prior to the date scheduled for construction, obtain building permit(s), and engineering permits as required, and thereafter diligently prosecute such work as is authorized in such permits. Failure to timely seek and to diligently pursue the issuance of all permits shall be a ---PAGE BREAK--- 6 breach of this AGREEMENT and grounds for termination of this AGREEMENT at the option of the CITY and the exercise of the remedies contained herein. 5.03 CITY Obligations Conditional. The obligations of the CITY, as set forth in this AGREEMENT, are subject to the condition that the OWNER shall not be in default of its obligations hereunder at any time; provided that obligations of CITY will continue upon the OWNERS cure of any such default in accordance with paragraph 6.01. 5.04 Completion Date. The OWNER for itself, and it’s successors and assigns, to begin and diligently prosecute to completion, the PROPOSED DEVELOPMENT of the SUBJECT AREA, through the obtaining of all necessary building and engineering permits, and after the issuance of such permits the subsequent construction of the improvements thereon, and that such permits shall be obtained and such construction shall in any event commence within one year of the date of this Agreement and, once commenced, be diligently pursued and shall be completed no later than two years from the date of this Agreement. 5.05 Access to the SUBJECT AREA. The CITY, for the purpose of inspection, and whenever and to the extent necessary, to carry out the purposes of this and other sections or provisions of the AGREEMENT shall be permitted access to the SUBJECT AREA, so long as the same shall not unreasonably interfere with the use and development of the SUBJECT AREA consistent with the terms and conditions of this Agreement. ARTICLE VI REMEDIES 6.01 Remedies Upon Default or Breach. In the event of any default in or breach of this AGREEMENT, or any of its terms or conditions, either party hereto or any permitted successor to such party, such party, or successor, shall, upon written notice from the other, proceed immediately to cure or remedy such default or breach, and in any event cure or remedy the breach within thirty (30) days after receipt of such notice. In the event that such default or breach cannot reasonably be cured within said thirty (30) day period, the party receiving such notice shall, within such thirty (30) day period, take reasonable steps to commence the cure or remedy of such breach and shall continue diligently thereafter to cure or remedy such breach or default in a timely manner. In case such action is not taken, or diligently pursued, the aggrieved party may institute such proceedings as may be necessary or desirable in its option to: ---PAGE BREAK--- 7 A. Cure or remedy such default or breach, including, but not limited to, proceedings to compel specific performance by the party in default or breach of its obligations; or B. Terminate this AGREEMENT. In the event that the OWNER is the defaulting party, upon termination, the CITY may institute proceedings to change the zoning to the zoning designations that existed prior to the changing of the zoning to C-3/CO. 6.02 Additional Remedies of CITY. Notwithstanding anything in this Agreement to the contrary, it is agreed by the parties hereto that (except as provided in Section 6.04, below) if the OWNER fails to commence construction within one year of the date of this Agreement, the CITY shall have the right, but not the obligation, at the sole discretion of the CITY to terminate this Agreement and the CITY may institute proceedings to change the zoning to the zoning designation that existed prior to the changing of the zoning to C- 3/CO. 6.03 Waiver of Objection and Hold Harmless. If CITY institutes proceedings to change the zoning to the original zoning designation in accordance with the provisions of this Agreement, the OWNER, its successors and assigns, hereby waives any objection to the zone change and hereby releases, indemnifies and holds the CITY harmless from any actions that may be brought in respect of any such zoning change. 6.04 Enforced Delay Beyond Parties Control. For the purposes of any other provisions of this AGREEMENT, neither the CITY nor the OWNER, as the case may be, nor any successor in interest, shall be considered in breach of or default in its obligations with respect to the preparation of the SUBJECT AREA for development, the seeking or obtaining of permits, or beginning and completion of construction of improvements, or progress in respect thereto, in the event the enforced delay in the performance of such obligations are due to causes beyond its control and without its fault or negligence, including, but not restricted to, acts of God, or of the public enemy, acts of the government, acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or unforeseeable delays of contractor or subcontractors due to such causes. 6.05 Extension by the CITY. The CITY, in writing, may extend the time for the OWNER to perform of any term, covenant, or condition of this AGREEMENT or permit the curing of any default upon such terms and conditions as may be mutually agreeable to the parties provided, however, that any such extension or permissive curing of any particular default shall not operate to eliminate any of the OWNERS obligations and does not constitute a waiver of the CITY’s right with respect to any other term, covenant or ---PAGE BREAK--- 8 condition of this AGREEMENT or any other default in, or breach of, this AGREEMENT. ARTICLE VII GENERAL PROVISIONS 7.1 Assignability. The OWNER shall not assign this AGREEMENT or any rights or interests herein without the prior written consent of the CITY, except that, upon notice to the CITY, the OWNER shall have the right to assign and transfer this AGREEMENT and its rights and obligations hereunder to an entity controlled by or under common control with the OWNER, so long as any such entity shall consent in writing to be bound by the terms of this AGREEMENT. Any assignee approved by the CITY shall consent in writing to be bound by the terms of this AGREEMENT as a condition of the assignment. The OWNER shall not transfer, assign, sell, lease, encumber, or otherwise convey its rights and obligations under this AGREEMENT separate from its interest in the SUBJECT AREA. 7.2 Successors and Assigns. This AGREEMENT shall be binding upon the OWNER and its successors and assigns and where the term “OWNER” is used in this AGREEMENT, it shall mean and include the successors and assigns of the OWNER except that the CITY shall have no obligation under this AGREEMENT to any unapproved, or otherwise unauthorized, successor or assign of the OWNER. 7.3 Reserved Legislative Powers. Nothing in this AGREEMENT shall limit the future exercise of the police power by the CITY in enacting or modifying zoning, subdivision development and related land use plans, policies, ordinances and regulations after the date of this AGREEMENT. 7.4 Minimum Zoning Standards and Vested Rights. It is not the intention of this Agreement to waive any existing minimum zoning standards, or to restrict the ability of the CITY Council to enact additional standards in the future. The only vested right obtained by the OWNER in the approval of this Agreement as part of the rezoning, is the right under the terms and conditions of this Agreement, to apply for site plan approval and building permits. 7.5 No Joint Venture or Partnership. This AGREEMENT does not create any joint venture, partnership, undertaking or business arrangement between the parties hereto. ---PAGE BREAK--- 9 7.6 Third Party Beneficiaries. Any claims of third party benefits under this AGREEMENT are expressly denied. 7.7 Agreement to Run With the Land. This AGREEMENT shall be recorded against the property referred herein as the SUBJECT AREA. The AGREEMENT contained herein shall be deemed to run with the land and shall be binding on all successors in the ownership of SUBJECT AREA. 7.8 Integration. This AGREEMENT contains the entire agreement with respect to the subject matter hereof and integrates all prior conversations, discussions or understandings of whatever kind or nature and may only be modified by a subsequent writing duly executed by the parties hereto. 7.9 Authority. The parties represent that each has the requisite authority to enter into this AGREEMENT and that the same has been duly authorized by all necessary or appropriate corporate or regulatory action. IN WITNESS WHEREOF, the CITY has caused this AGREEMENT to be duly executed on its behalf and OWNER has caused the same to be duly executed on its behalf, on and as of the day and year first written above. CITY: OGDEN CITY CORPORATION, a Utah Municipal Corporation Michael P. Caldwell, Mayor ATTEST: City Recorder APPROVED AS TO FORM: City Attorney ---PAGE BREAK--- 10 OWNER: MARK KITCHEN A C K N O W L E D G M E N T S STATE OF UTAH ) :SS COUNTY OF WEBER ) On this day of , 2017, personally appeared before me, Michael P. Caldwell, whose identity is personally known to me (or proved to me on the basis of satisfactory evidence) and who by me duly sworn (or affirmed), did say that he is the Mayor of Ogden City, a municipal corporation, and that the foregoing document was signed by him in behalf of said Ogden City, and that said Ogden City executed the same. Notary Public STATE OF UTAH ) :SS COUNTY OF WEBER ) On this day of , 2017, personally appeared before me Mark Kitchen, who being by me duly sworn did acknowledged to me that he executed the same. Notary Public ---PAGE BREAK--- 11 ATTACHMENT A (“SUBJECT AREA”) ALL OF LOTS 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, AND 36, BLOCK 10, RIVER PARK ADDITION, OGDEN CITY, UTAH. Land Serial No. 14-047-0010, 14-047-0011, 14-047-0012, 14-047-0013 ---PAGE BREAK--- 12 ATTACHMENT B (“CONCEPT PLAN”) ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK--- ---PAGE BREAK---