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STAFF
ITEM DATE SUBMITTED BY
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COM MU NIry DEVELOPM ENT DEPARTIUENT
Land Use and Zoning Services
STEVE HASSON
Community Development Director
December 15,2003
Ms. Rita Earl
Earl, Mason, & Stanfield
314 Badiola St.
Caldwell, lD 83605
Dear Rita:
This letter is in response to your inquiry about the opportunity to forego the requirement
to submit a landscape plan as part of a development application (where one was
needed) with the promise to submit it after the preliminary plat is approved by the
planning and zoning commission. I assume that the reasoning behind this inquiry has to
do with the expens6 of preparing a landscape plan at the onset without knowledge of
whether the plat will be aPProved.
We discussed, as an alternative, the idea of providing snapshots of typical landscape
profiles that would serve in lieu of landscape plans to satisfy this requirement.
I have thought about your request at length and my response is the preliminary
subdivision-plat landscape plan will need to be submitted prior to the public hearing
before the pianning and'zoning commission, however the landscape plan does not have
to be submitted at the time of application.
Let me offer three reasons for this administrative determination denying this
consideration: sprit and intent of the ordinance, appeal process and lack of authority to
set aside this development application condition'
Spirit and intent: I think that the primary reason that a landscape plan is a condition of
the preliminary plat application is to afford the legislative authority and the general public
and opportuni-ty to see'what the development's landscaping will look like as part of the
approval process.
Unlike roads and sewer lines that have little visual impact, the adding or subtracting of
landscaping (even a tree or bush) may be viewed as visually or aesthetically impacting
adjoining properties and/or the community in general.
Because of the potential for these visual impacts it was understood at the time the
ordinance was adopted that the commission and councilwould participate in the
reviewing of plans io make sure that the development was consistent with the City's
aesthetic goals and values as stated in the landscape ordinance.
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Further, that the adjoining neighbors and interested parties would have some input into
where the landscaping would go (through a public hearing process) in the event it
interfered with their lifestyle by its presence or absence.
It was also understood that these legislative bodies would provide appeal relief from City
staffs landscape requirements (if there was a need for appeal) because that was the
venue for relief.
your inquiry begs the question: lf there is no landscaping plan available at the time of
the legislative r6views and these bodies are suppose to be the reviewers - then what do
they ivaluate? lt also prompts the question that I will address later in this ruling - can
their review be transferred to staff after the fact?
Accordingly, how do they fulfill the landscape ordinance requirements that say they will
be the reilewing body? tneir lack of landscape review (should it be deferred) may
expose the legiilative bodies to legal challenge for not following their ordinance
requirements requiring their review.
I believe that due process is set aside when the individuals who should participate in the
evaluation process are left out of the equation because the developer plans are
evaluated and approved by staff after the granting of preliminary plat - especially if there
is no authority providing that consideration.
Which also begs the question: what is the value of preliminary plat approval, if a critical
component of the process is withheld from the public evaluation?
Appeal process: Suppose that a developer gets preliminary plat approval, without
submitting landscape plans as part of the legislative review process because they are
relying on-staff to review them later. Now consider the fact that staff reviews the plans
and riquires certain condition or performances that the developer would like to have
excused or modified.
As you are aware this happens frequently in the staff/developer give and take process.
At that point the developer's recourse is to appeal the requirements (if they don't want to
abide by them). As you know appealing staff conditions adds time and expense to the
devetofment proceis because of the associated notification and scheduling
requirements.
The irony of this scenario is that the applicant could have asked for relief as part of the
commisiion or council's review if the plans were prepared in advance with forewarnment
of a need to appeal them.
Accordingly, when the developer forgoes the public landscape review process (because
they choie to do it later) they run the risk of having to pursue an appeal, after the fact' if
they are not satisfied wiih statfs interpretation; an appeal that othenruise would have
been automatic because it was built into the public hearing process'
Or, live with conditions they do not believe are acceptable'
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Thus, they are setback 60 or 90 days, waiting for an appeal - paying interest on the
development and delaying the sale of their product. Worse, the appeal period eats into
the 12-month preliminary plat approval period, likely necessitating a later extension
request.
Prudence alone would say that a developer should have the plans ready, upfront to
minimize unforeseen consequences, especially when plans can be procured in minimal
time and at modest expense and because it is one more thing out of the way - one less
thing to worry about!
Lack of authority to set aside this development application condition:
Finally, I do not see language in the landscape ordinance that allows the deferral of the
preliminary landscape pian to a time after the public hearing nor do I see.authority that
provides siaff to serve as the reviewing body in the legislative authorities' stead. I do not
believe that I can infer or imply any authority without a directive affording such an
opportunity and I do not see that discretion in the ordinance-
Accordingly, the landscape plan must be submitted as a condition of moving the
development application forward to the planning and zoning commission.
Because this is an administrative determination it may be appealed if done so timely. As
an alternative, the applicant may seek a text amendment that would afford staff that
discretion. Absent these alternatives, the development landscape plans must be
submitted prior to the public hearing.
I trust this letter adequately responds to your inquiry.
Very truly
Hasson, AICP
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