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Findings of Fact regarding MD Nursery conditional use permit (CUP) for expansion of business

Decision Makers: Planning & Zoning Commission – Teton County, ID

Topic: Findings of Fact regarding MD Nursery conditional use permit (CUP) for expansion of business

March 11, 2008

Teton County P&ZC
89 North Main Street
Driggs, Idaho 83422

RE: MD Nursery CUP

Dear Commissioners,
        The commercial expansion of MD Nursery has sparked a lively debate, and it is easy to focus on emotional issues. VARD is not here to tarnish MD’s generosity and kindness to their employees. We simply want to focus this argument on process. Fundamental fairness requires that our county rules and regulations be upheld by everyone. In order to keep this issue on topic (ie: process) VARD respectfully submits the following findings of fact to the P&Z Commission:

Findings of Fact

•    Fact 1: The 2005 Conditional Use Permit application submitted by MD Nursery, specifically requested a permit for a “garden store / nursery.” There is no reference to the sale of additional items on the property, and there is no reference to incidental uses to the landscaping business.
•    Fact 2: In the May 10, 2005 P&Z minutes, the Planning & Zoning Administrator Larry Boothe stated that “no further uses will be allowed without amending the Conditional Use Permit.”
•    Fact 3: The May 10, 2005 P&Z minutes reveal the following conversation between commission member Sabra Steel and Administrator Larry Boothe:
“Sabra Steel questioned the uses that would be allowed under the classification of a nursery within the C-2 zoning district? Mr. Boothe responded that anything related to landscaping could be a part of their business operation.”
•    Fact 4: The May 10, 2005 P&Z minutes reveal the following discussion amongst the commission members and the Administrator:
“Mr. Young began by saying he hadn’t heard anyone complain about the landscaping business prospering, but felt the zoning district amendment to C-2 should not be taken lightly. Mr. Moulton interjected by stating the zoning district amendment was not being approved solely, a conditional use permit was required as well. Mr. Young responded that this application would set a precedent for future requests. He further stated a business plan should be a requirement, a plan that state the intent for the business for the next five years. Mr. Lewis agreed with the precedent that would be set, as the applicant has not provided a complete application. There should be specific plans, with conditions that address the business location. Mr. Bagley responded to Mr. Lewis and Mr. Young by saying the applicant has agreed to remedy all of the concerns raised by the adjoining properties. Mr. Bagely further added that the zoning district application was an integral part of a conditional use permit. Mr. Richardson stated that the appearance of the property along the highway was a reflection of the intent of the whole site; however, it would be beneficial to see a business plan. Mr. Moulton presented his opinions as agreeing with Mr. Lewis and Mr. Young that the proposal was lacking detail, if it were not an existing business. Mr. Moulton then added the possible condition that no business or use is added to what is currently on site without an amendment to the conditional use permit.”

    Fact 5: The May 10, 2005 P&Z minutes make no reference to incidental uses of this CUP. There is also no discussion of the applicant selling non-gardening and nursery products. Furthermore, there is no record of the applicant stating that additional items were sold on the premises, or that  “garden store/nursery” was a mischaracterization of the nature of his business.
•    Fact 6: Condition #4 of the June 24, 2005 development agreement states “Change in ownership or specified use shall require review of the Conditional Use Permit and Development Agreement.”
•    Fact 7: Condition #7 of the June 24, 2005 development agreement states “This Conditional Use Permit is for a Garden Store/Nursery and other uses specific to landscaping.”
•    Fact 8:  Condition #10 of the June 24, 2005 development agreement states “The applicant is not requesting any additional structures or uses that are not currently ongoing on this site.”
•    Fact 9: Section 8-4-2 of the Teton County Code defines a “garden store/nursery” as “The growing, cultivation, storage and sales of garden plants, flowers, trees, and shrubs to the public which may be grown on site in a green house and landscape business.”
•    Fact 10: This definition of a “garden store / nursery” has been in effect since May 9, 2005.
•    Fact 11: MD’s current CUP amendment application states the “new structure will provide an expansion of incidental uses to the landscaping business; it will contain approximately 9600 square feet of retail space, 6400 square feet of office space, and 750 square feet of bakery space.”
•    Fact 12: The MD website homepage states that the new building has been open and in operation since February 1, 2008.  (See attachment 2: A copy of MD’s homepage.)
•    Fact 13: MD’s website states that it currently sells a wide variety of items includng: Candles, Books, Jewelry, Burt’s Bees, Soaps & Lotions, Kitchenware, Tea Towels & Dish Cloths, Bowls, Teapots, Cake Plates, Jams, Vinaigrettes, Marinades, Mustards, Houseplants and Pots, Antique Trunks and Armoires, etc.  (See Attachment 1: A copy of MD’s gift shop information.)
•    Fact 14: The Land Use Table in section 8-4-1 of the Teton County Code provides that all commercial uses in the C-2 zoning may be conditionally approved. This language is discretionary. There is no guarantee of approval. They are conditional uses only. No other uses shall be permitted without being added to the schedule. (See Attachment 3: Scope of Discretionary Authority, herein incorporated into this record.)
•    Fact 15: Section 8-6-1(B)(7) of the Teton County Code provide the following criteria for approval of a CUP:
The board, after considering the advice of the commission, may approve a conditional use permit when evidence presented at the hearings is such to establish each of the following:
a.    The location of the proposed use is compatible to other uses in the general neighborhood.
b.    The proposed use will not place undue burden on existing public services and facilities in the vicinity.
c.    The site is large enough to accommodate the proposed use and other features as required by this title.
d.    The proposed use is in compliance with and supports the goals, policies, and objectives of the comprehensive plan.
 
•    Fact 16: Policy #5 in the Teton County Comprehensive Plan states “To recognize city impact areas an municipalities as the desirable locations for industries and retail commercial activities.” CUP applicants are required to address this goal when completing their permit application.
•    Fact 17: Section 8-3-5(F)(2) of the Teton County Code provides the following characteristics of C-2 zoning:
“By way of example only, retail businesses using this zone would be lumber yards, plant nurseries, movie theaters, automobile dealerships, large equipment sales and rentals, hotels and motels, sale of motorized sporting equipment sales and rentals, hotels and motels, sale of motorized sporting equipment, large office complexes etc . . . the defining characterizings of these businesses would be the need for large lots, merchandise, located in large warehouses or out-of-doors and the need for large vehicles for pickup and delivery.”

The good thing about facts is they are immutable. They are also the corner stone upon which this commission will base its decision. There is fortunately an abundance of facts in the record which build a very clear picture of what has happened here. In 2005, the P&Z commission was concerned about the precedent set by this zone change and CUP. And here we are 3 years later still discussing the next phase of this growth. While we cannot undo the past, VARD’s chief concern is fundamental fairness; everyone should abide by the same land use rules and regulations.

Sincerely,
Anna Trentadue

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