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Documents received after PZ packet 10-16-17From: Subject:Fwd: Westlake Zoning Date:Monday, October 16, 2017 7:37:54 AM FYI ... Michelle Lee cell Begin forwarded message: From: "Beauchamp, Paul (US - Fort Worth)" <> Date: October 15, 2017 at 6:57:10 PM CDT To: "> Subject: Westlake Zoning Michelle,   I hear that you are the chair for the zoning committee tomorrow for the proposed change in zoning for the area north of Glenwyck.  I live on Broken Bend Drive in Glenwyck and I am writing IN FAVOR of the change.  I hope to come to the meeting tomorrow but my work schedule may make that a challenge.  If I am able to come I will express why this proposed alternative is much better for all parties than the current zoning.  The owner of the land will look to monetize the investment and, to my knowledge, they don’t own other property within the town that may be used in negotiations.  The setbacks proposed seem appropriate, sight lines seem acceptable, the improvements to the paths and parks are good and the effect on the school is healthy.    I served on the long term town planning committee and I find the alternative being proposed as consistent with the objectives of the work we did.  We understood that there were constraints to the plan and it was just a best case scenario wish list.  One cannot predict with whom negotiations will take place, what their incentives might be and what other properties in the town they may own.  From what I know this is a good deal which serves as an appropriate connection between the various communities and is consistent with the general ethos of the town.  A commercial development would certainly not meet that criteria.  I would think that the homeowners abutting the property would prefer to view this proposal as better than the alternative unless their wish is for no development to ever occur.  This is an unrealistic hope based on the clear motives of a financial investor.   Please feel free to share this e-mail with anybody who might be interested.  I am only one resident but I understand that the voices against this zoning proposal are my neighbors.  Please do not assume that they speak for all of us.  They may speak loudly but that does not make their arguments based on fact and it certainly does not mean that they speak for anybody but themselves.   Kind regards, Paul   Paul Beauchamp Partner Audit and Enterprise Risk Services Deloitte & Touche LLP Fort Worth Tel: +1 Fax: +1 www.deloitte.com   This message (including any attachments) contains confidential information intended for a specific individual and purpose, and is protected by law. If you are not the intended recipient, you should delete this message and any disclosure, copying, or distribution of this message, or the taking of any action based on it, by you is strictly prohibited. v.E.1 1 October 15, 2017 VIA U.S. MAIL and EMAIL TO: rruthven@westlake-tx.org Town Council and Planning & Zoning Commission Members c/o Ron Ruthven, Director of Planning and Development Town of Westlake 1500 Solana Blvd. (The Terrace) Building 7, Suite 7200 Westlake, TX 76262 Re: Protest Petition for Case No. Z-06-19-17; Zoning change request for approximately 62.53 acre portion of Lot 1, Block 3 Westlake/Southlake Park #1 Dear Town Council and Planning & Zoning Commission members: We, Jan and Harry Dombroski, reside at 1808 Broken Bend Drive. We oppose to the zoning change requested in Case No. Z-06-19-17 and respectfully request that you deny the requested zoning change for the following 8 reasons detailed below: (1) The proposed zoning change is not in compliance with the Land Use Plan and the 2015 Town of Westlake Comprehensive Plan, (2) the proposed 150-foot setback is contrary to the 500-foot yard setback of PD1-1 and will result in property value loss, (3) the proposed dense development is in conflict with the Town of Westlake Transfer of Development Intensity Ordinance, (4) the proposed zoning change does not meet the requirements of the Town of Westlake Code of Ordinances, (5) the proposed zoning change does not comply with tree mitigation requirements, (6) the proposed zoning change has a negative financial impact on the Town, (7) the proposed zoning change is inconsistent with surrounding properties and will result in a loss of property value, and (8) the proposed zoning change is inconsistent with the Town’s Tree City USA Membership and the Town’s Vision Statement. In addition, the zoning change request should be denied for an even more fundamental reason before the Town analyzes these 8 problems with the request. In particular, the property owner, Blackstone (“BRE Solana, LLC”), has repeatedly and stubbornly refused, over the last 3 years, to meet with the Town to discuss a Master Plan for BRE Solana’s properties. Over the last 3 years, dozens of requests for such a meeting have been made by the Town Staff (Tom Brymer, Eddie Edwards, and Ron Ruthven) and Mayor Wheat. As the Town Council and Planning & Zoning Commission members are aware, the Town had an early opportunity to bring BRE Solana to the table when it wanted to build a parking garage at one of the Solana buildings. Despite the fact that BRE Solana continued to refuse to discuss a Master Plan, out of good faith and with the goal of changing BRE Solana’s attitude, the Town allowed BRE Solana to build the parking garage that it wanted. At that time, the Town Staff indicated that BRE Solana would not obtain another favor from the Town, and in particular, a zoning change, unless BRE Solana came to the table and agreed to (1) keep the Open Space Land (the subject of Z-06-19-17) as open space, and (2) build its allowed 10% lot coverage on its more valuable properties by the expressway. The Town has even offered incentives to BRE Solana in return for BRE Solana building its allowed 10% lot coverage on its more valuable properties by the expressway. The incentives offered by the Town include providing BRE Solana with more square footage to be built beyond the 47,230 s.f. allowed 2 under the 10% lot coverage calculation,1 tree mitigation credits, and relaxation of setback and building height restrictions. To date, BRE Solana has continued to refuse to come to the table. Now that a zoning change request is pending, the Town can finally insist on the BRE Solana Master Plan that is long overdue, one that will keep the subject Open Space Land as open space pursuant to the Comprehensive and Land Use Plans (and preserve the ability of the Town to place a one of a kind wooded Community Park on the North half of the Open Space Land pursuant to the Parks & Open Space Plan). To this end, in a February 29, 2016 letter to the residents of Glenwyck Farms, Mayor Wheat, speaking as Mayor of the Town of Westlake and also expressly on behalf of the Town Council, represented that the Town would “push” for the Open Space Land to remain “open and unimproved should the developer request any sort of zoning change,” just as Wilbow, the developer, is doing now: It is important to understand that the newly revised Comprehensive Plan, adopted by the Town Council in 2015, designates as Open Space the whole 62.5 acre tract of land of which the Glenwyck [500-foot] Setback is a part. See Attachment B. Although current entitlements on this 62.5 acre tract allow development, the Open Space designation is a signal to future developers that the Town will be pushing for the space to remain open and unimproved should the developer request any sort of zoning change. In the event a future developer does not agree to the Open Space designation and desires to develop the property, it is important to know that the very nature of the Solana Planned Development District gives the Town many strong tools to heavily regulate the manner in which the property can be developed. These tools range from requiring preservation of view corridors, to requiring the preservation of trees, to limiting the footprint and place of any structures and all improvements and to things as simple as the placement of trash cans. February 29, 2016 Letter from Mayor Wheat to Glenwyck Farms Residents at 4 (emphasis added). Mayor Wheat and the Town Council members should follow through with their promise in their February 29, 2016 letter to “push[] for the space to remain open and unimproved should the developer request any sort of zoning change.” It is not in the Town’s or its citizen’s best interest to continue to make concessions to BRE Solana and get nothing in return. If it was not clear from the beginning, it is abundantly clear now that BRE Solana intends to (1) obtain concession after concession from the Town with the sole goal of maximizing profit on the “flip” of its purchase of Maguire Partners’ Solana office buildings out of bankruptcy, and (2) get out of town. In fact, BRE Solana is already half way out of town on its “flip” as it has already sold (“flipped”) two of its office buildings. BRE Solana will soon be out of Westlake and on to its next profit maximizing “flip.” 1 On January 7, 2013, pursuant to the approval of Entrada and Granada, the Town Staff (Eddie Edwards) and Trent Petty (the first Town Manager and now consultant to the Town) calculated the remaining allowed square footage to be built within PD1 after approval of Entrada and Granada. See January 7, 2013 Emails Between Eddie Edwards and Trent Petty, attached as Exhibit 1. Mr. Edwards and Mr. Petty calculated the remaining allowed square footage to be 47,230 s.f. Thus, at most, BRE Solana can build only 47,230 s.f. on the Open Space Land. 3 In addition to BRE Solana’s refusal to meet with the Town, the proposed zoning change should be denied for the following 8 reasons: 1. The proposed zoning change is not in compliance with the Land Use Plan and the Parks & Open Space Plan of the 2015 Town of Westlake Comprehensive Plan. The requested zoning change is contrary to the Land Use and Comprehensive Plans. The Open Space Land, located within the Open Space Land District of the Land Use Plan, abuts the Glenwyck Farms and Granada subdivisions. The Comprehensive Plan states that: [T]he intent of the Open Space District is to preserve vistas and view corridors and, thereby, preserve the essence of Westlake’s pastoral setting as it experiences increasing amounts of commercial and residential development. Open Space Land Use District is meant to be primarily undeveloped with landmark landforms of the Town remaining in their natural condition, thereby preserving important views as well as natural and rural settings. 2015 Town of Westlake Comprehensive Plan. The proposed dense residential development is inconsistent with the expressed intentions of the Town Council, P&Z Commission, and the Town’s citizens, who approved the Land Use Plan to keep the Open Space Land undeveloped and in its natural state. Accordingly, residential development within the Open Space Land Use District does not comply with the 2015 Town of Westlake Comprehensive Plan. In a red herring argument, the developer argues that it is preserving open space in the Southeast portion of the 62.53 acre property. However, this portion of the property is not designated as open space pursuant to the Land Use and Comprehensive Plans. Moreover, this Southeast portion of the property is “undevelopable” according to the developer’s representative, Larry Corson, and thus, the Southeast portion will always remain as open space. This means that the developer is offering nothing to the Town in return for being able to (1) clear cut the Open Space Land, and (2) shave down, by 20 feet, the knoll (hill) that acts as view shed and noise barrier for the Town. Both (1) and (2) would be devastating to the Town’s citizens and their properties if the Town Council and P&Z Commission were to allow it. Also, the requested zoning change is contrary to The Parks & Open Space Plan that is a part of the Comprehensive Plan. The Parks & Open Space Plan calls for the only Community Park in the Town to be located on the North half of the Open Space Land. In what would be another bad deal for the Town, the developer proposes that the Town abandon its plans for the only, one of a kind, 30 acre wooded Community Park on the North half of the Open Space Land pursuant to the Parks & Open Space Plan and instead have the 2 acre “Mayor’s Hill” with a wooden staircase replace it. Other than the building of a wooden staircase on Mayor’s Hill, which would be an eyesore and a hazard, the Town receives nothing in return because Mayor’s Hill will exist no matter what (again, as the developer’s representative has conceded, this Southeast area is “undevelopable” and will remain as open space). 2. The proposed 150-foot setback is contrary to the 500-foot yard setback of PD1-1 and will result in property value loss. The requested zoning change seeks to create a new PD6 that eliminates all of the development regulations of PD1-1. An important development condition in PD1-1 imposes a minimum size of 4 front, side and rear yard of five hundred feet (500’) setback from Glenwyck Farms. Similarly, there exists a 500-foot setback in connection with the Granada subdivision. The development plan associated with the requested zoning change removes the Glenwyck Farms 500-foot yard setback and the Granada 500-foot setback and replaces them with a 150-foot setback. Property owners in Glenwyck Farms and Granada invested substantial monetary sums in their land and improvements in reliance on the Town’s imposition of the 500-foot yard setback and 500-foot setback, with exemplary Glenwyck Farms residents paying multiple 6 figure premiums (each) to purchase their homes that adjoin the 500-foot yard setback. At 150 feet, even for that period of the year when leaves are on the trees, the windows of the proposed dense development will be looking directly into the bedroom windows, living rooms, family rooms, and backyards of Glenwyck Farms and Granada residents. When the leaves are down in Fall/Winter/Early Spring, the view will be clear as you can see all of the way to the knoll (hill) at 500 feet away with the leaves down. Making matters even worse, the requested zoning change proposes the placement of parking lots (and presumably lighting poles) at only 150 feet away from the back yards of Glenwyck Farms and Granada residents (see the red arrows below): As the Town Staff, P&Z Members, and Town Council will recall, the 500-foot yard setback was established in 1992 via Ordinance 202, and the text and history of Ordinance 202 (and its successors 588, 691, and 767) evidence that the 500-foot yard setback is a greenspace buffer. Four of the most important Town witnesses that have lived and owned the genesis of the 500- foot yard setback in the 1990s confirm that the 500-foot yard setback is a greenspace buffer. During this time, former Mayor Bradley was Chairman of the Planning and Zoning Commission. Mayor Bradley led the Town’s negotiations with IBM, the owner of the Open Space Land at the time. Mayor Bradley will testify before the P&Z Commission and the Town Council that he had express and extensive discussions with the President of IBM Realty concerning the fact that the 500-foot yard setback is a greenspace buffer that is to remain untouched and undeveloped. Mayor Bradley will further testify that the President of IBM Realty believed that the greenspace buffer 5 would provide value to IBM’s properties by preserving open space. The President of IBM Realty also believed that the IBM development would serve as an exemplary development for the Town on how open space was to be preserved and how view sheds should be retained, including the knoll (hill) North of Glenwyck Farms and East of Granada. This is evidenced by the fact that the President of IBM Realty agreed to move 300 million square yards of dirt to create the Mayor’s Hill in order to create a greenspace buffer and view shed that did not already exist. In effect, IBM created a second knoll (hill) to the East. IBM did not need to do this to the North of Glenwyck Farms because the natural knoll (hill) already existed, and it is this natural knoll (hill) that the developer now seeks to shave down by 20 feet. As the Town Staff, P&Z Members, and Town Council will also recall, Trent Petty, the Town’s first Town Manager and current consultant to the Town, likewise confirmed that the 500-foot yard setback is a greenspace buffer and was treated that way by the owners of the Open Space Land, both IBM and subsequent owner Maguire Partners. As the Town Staff, P&Z Members, and Town Council will also recall, Glenwyck Farms homebuilder Scott Simmons testified at the January 4, 2016 P&Z Hearing (relating to the fix of the typographical error in Ordinance 691) that the Town of Westlake communicated to Glenwyck Farms homebuilders and the Glenwyck Farms developer that the 500-foot yard setback is to remain as undisturbed greenspace and is not merely a bare “setback.” As the Town Staff, P&Z Members, and Town Council will also recall, we had the opportunity to speak with Howard Dudley, former Town Alderman and owner of the land now known as Glenwyck Farms, about the 500-foot yard setback (which Mr. Dudley enacted with the other Town Alderman via Ordinance 202 in 1992). Mr. Dudley likewise confirmed that the 500-foot yard setback is to remain as undisturbed greenspace. In fact, Mr. Dudley indicated that the 500-foot yard setback was specifically designed to preserve the knoll (hill) and trees to the North of his property and create a buffer for his property with respect to future development. Mr. Dudley and the other Town Alderman were quite accurate back in 1992 because the developer’s topography map associated with this zoning change request shows that you get over to the North Side of the knoll at 500 feet out. Moreover, the Town’s communications concerning the existence of the 500-foot yard setback and the fact that it prevents any development within 500 feet of Glenwyck Farms has been memorialized in writing. The Town of Westlake has sent written correspondence to the Glenwyck Farms developer and to Glenwyck Farms residents confirming that “any development” must occur outside of the 500-foot yard setback area. For example, on November 1, 1999, Dennis Wilson, Town Planner, sent a letter to David McMahan at Four Peaks Development, Inc. (the developer of Glenwyck Farms) in which Mr. Wilson confirms that “any development” of the Open Space Land must occur 500 feet away from Glenwyck Farms. See November 1, 1999 Letter from Dennis Wilson to David McMahan, attached as Exhibit 2. This November 1, 1999 Letter from Dennis Wilson, Town Planner, was also distributed to Glenwyck Farms residents, upon which they relied in purchasing their homes. In addition, on February 5, 2009, Tom Brymer, current Town Manager, sent a letter to Pat Cockrum, Glenwyck Farms resident, likewise confirming that “any development” of the Open Space Land must occur 500 feet away from Glenwyck Farms. See February 5, 2009 Letter from Tom Brymer to Pat Cockrum, attached as Exhibit 3. The February 5, 2009 Letter from Tom Brymer to Pat Cockrum is particularly instructive as it makes clear 6 that “any development,” even a gas well pad site, is prohibited within the 500-foot yard setback. In other words, the 500-foot yard setback prevents “any development” within 500 feet of Glenwyck Farms, whether that development is a building, a gas well pad site, or a surface parking lot. The text of Ordinance 202 (and is successors) and the Westlake Code confirm the same. Specifically, while other clauses refer expressly to “setbacks,” the clause that creates the 500-foot yard setback has always referenced a 500-foot “yard.” Here, the Town was its own lexicographer and provided its own definition of the word “yard” in the Westlake Code of Ordinances. According to the Westlake Code, a “yard” is “open space,” and “open space” is greenspace that is “relatively free of manmade structures [such as buildings and parking lots], where water bodies, land forms [such as a knoll/hill], and vegetation [such as trees] predominate”: Yard. The word “yard” shall mean an open space, other than a court, on a lot unoccupied and unobstructed from the ground upward unless specifically otherwise permitted in this Code. Open Space. The words “open space” shall mean that land area which is relatively free of manmade structures, where water bodies, land forms, and vegetation predominate. Westlake, TX Code of Ordinances. In short, the 500-foot yard setback is a greenspace buffer according to Ordinance 202 (and its successors), the Westlake Code of Ordinances, and the Town’s representatives who, for 20 years, represented that the 500-foot yard setback is a greenspace buffer to the developer of Glenwyck Farms, Glenwyck Farms homebuilders, and Glenwyck Farms homeowners, each of whom has financially relied on the same. If this 500-foot yard setback is removed, then the Glenwyck Farms homeowners that border the Open Space Land will lose the 6 figure premiums (each) that they paid for their homes. 3. The proposed dense development is in conflict with the Westlake Transfer of Development Intensity Ordinance. Pursuant to the expressed intent of the 2015 Comprehensive Plan and to preserve Westlake’s view corridors and scenic topography, the Westlake Transfer of Development Intensity (“TDI”) Ordinance was adopted. The Open Space Land is in a Sending District where permitted development intensity should be transferred to a Receiving District. The proposed zoning change for dense residential development is in direct conflict with the intent of the TDI Ordinance that such development occur in a Receiving District. In fact, the TDI Ordinance is designed to transfer the existing PD1-1 permitted development intensity out of the Open Space Land District. The creation of a new PD6 in place of PD 1-1 with dense residential development intensity within a Sending District is a complete abomination of the TDI Ordinance, which is designed to prevent zoning changes that increase development intensity within a Sending District. The TDI Ordinance could not have been written for a better situation than we have now. BRE Solana owns the Open Space Land, which is in a Sending District. BRE Solana also owns 7 valuable property by the expressway that is in a Receiving District. Thus, BRE Solana can obtain incentives from the Town pursuant to the TDI Ordinance by building its allowed square footage (pursuant to the 10% lot coverage rule) on its expressway properties (all of BRE Solana’s allowed square footage can be built on its expressway properties). The fact that this deal has not already been done is a function of BRE Solana’s refusal to come to the table with the Town to talk about a master plan for its properties. 4. The proposed zoning change does not meet the requirements of the Westlake Code of Ordinances. Ordinance 101-266(i) – The proposed zoning change does not meet the following approval criteria for a planned development: 1. The requested zoning change is inconsistent with the Town's Comprehensive Plan (including the Land Use Plan and the Parks & Open Space Plan); 2. The proposed dense residential uses and the configuration of the dense residential uses are not compatible with existing and planned adjoining residential uses because no development is to occur in the Open Space Land, which is meant to serve as a buffer; 3 The proposed dense residential uses, development densities and intensities, and development regulations are not consistent with this article because no development is to occur in the Open Space Land, the proposed development densities are greater than those of the adjacent Glenwyck and Granada neighborhoods, and no development intensity is to occur in the Open Space Land Sending District of the TDI Ordinance; 4. The configuration of the proposed open space serving the proposed development is not consistent with the Town's Open Space Plan because the Open Space Plan shows contiguous open space with no development of any kind except for a community park in this particular Open Space Land District, whereas the configuration of open space serving the proposed development is non-contiguous and randomly spaced among the dense units and also outside this particular Open Space Land District; 5. No amenities of value to persons who are not residents of the proposed residential development are proposed that justify proposed residential densities or intensities in an area that is meant to be undeveloped as Open Space Land; 6. The proposed dense development does not further the public health, safety, and general welfare of the community when the Town’s Comprehensive Plan, designed to preserve view corridors and native pastoral settings, is abrogated with the dense development that wipes out the Open Space Land. Ordinance 102-241 – The proposed zoning change does not meet the following purposes for the creation of a planned development: 8 1. Superior design of lots or buildings is not accomplished by PD6 with lot dimensions of 80’ X 135’ and dense units that are incompatible with existing homes in Glenwyck Farms and Granada; 2. Increased recreation and/or open space opportunities for public use is not provided by PD6 because existing, contiguous, undeveloped open space is being replaced by noncontiguous open space spread between 65 dense units plus wooden stairs to the top of “Mayor’s Hill,” which is an eyesore and a hazard; 3. Rural amenities or features that would be of special benefit to the property users or community is not provided by the proposed dense development in the middle of existing open space that already provides the rural amenities and features desired; 4. The proposed PD6 does not protect or preserve natural amenities and environmental assets such as trees, creeks, ponds, floodplains, slopes or hills and viewscapes because the existing Open Space Land with dense mature trees, a knoll that provides a sound barrier from traffic on Highway 114, and a sloping hill with viewscape for the Glenwyck and Granada neighborhoods will be destroyed by the proposed dense development; 5. The proposed PD6 does not protect or preserve existing historical buildings, structures, features or places because the proposed dense development will eliminate the existing Open Space Land, which contains the characteristic topography, views, and vistas that are the essence of Westlake’s pastoral setting; 6. The proposed PD6 does not provide an appropriate balance between the intensity of development and the ability to provide adequate supporting public facilities and services because development intensity is not to occur in this Open Space Land District and is to be sent from this area to receiving districts elsewhere in the Town. Ordinance 98-46 – The proposed zoning change is in direct conflict with the following tree preservation principles: 1. Not only will PD6 not protect against the indiscriminate clearing of trees, it will actually promote indiscriminate clearing of trees. Mass clear cutting of trees in this densely wooded Open Space Land is unavoidable in order to develop the proposed dense 65 lots with a 20-foot drop in grade of the view shed which now exists. The top area of the knoll (hill) that will be shaved down by 20 feet is particularly problematic because no trees or vegetation will survive this type of catastrophic soil removal. 2. PD6 will not protect and increase the value of residential and commercial properties within the Town because the Open Space Land District, left undisturbed in its natural state, is what protects and increases the value of the residential and commercial properties in the Town. 3. PD6 will not maintain and enhance a positive image for the attraction of new businesses and residents to the Town to the same extent as the Open Space Land District, with a Community Park among the dense trees in its natural state. 9 4. PD6 will not protect healthy mature trees and promote the natural ecological, environmental, and aesthetic qualities of the Town and will instead destroy the healthy mature trees in this Open Space Land District. This Open Space Land will be clear-cut for an incompatible dense development. 5. PD 6 will not preserve the rural forested character of the Town and will instead result in the annihilation of the last true piece of rural forested land in the Town. This is why the land was designated as Open Space Land. 5. The proposed zoning change does not comply with tree mitigation requirements. In November 2016, a tree survey of the Open Space Land was purportedly conducted by the developer’s consultant, Kimley Horn, wherein based upon a sampling process, trees 6-inches and greater in diameter were tagged and counted. Conspicuously absent from the developer’s zoning change request is a copy of this Kimley Horn survey. In fact, the Town Staff notes the failure of the developer to submit the survey and that the total cost of tree mitigation is “several million dollars at a minimum”: The survey was not submitted as part of this request. Staff estimates that total cost of mitigation would be several million dollars at a minimum. August 14, 2017 Staff Report at Page 89 of the August 14, 2017 P&Z Agenda. One can only assume that the survey is not favorable to the developer, especially because what little is disclosed about the survey evidences that tree mitigation payments to be paid by the developer should be many millions of dollars. In particular, by failing to disclose the Kimley Horn survey, the developer prevents the Town from calculating just how many millions of dollars are owed by the developer (the average caliper inches per Protect Tree is not disclosed). Although the Town was not provided with a copy of the Kimley Horn survey, the developer represents that that the survey determined that there were approximately 105 Protected Trees per acre on the East side of the sample area and approximately 162 Protected Trees per acre on the West side of the sample area. The proposed development will be on the West side of the subject property area. Per the developer’s Land Use Summary, 25.3 acres consists of residential areas and right-of-way that will be clear cut. Based upon 162 Protected Trees per acre and 25.3 acres of development including right-of-way, this represents 4,098.6 trees of at least 6 caliper inches that will be clear cut, not to mention thousands of other trees that are less than 6 caliper inches. Even if one assumes that every tree is only 6 caliper inches (and no more), this would represent 24,591.6 caliper inches. At $100 per caliper inch, this represents a minimum tree mitigation cost of $2,459,160. Of course, many of the trees on the Open Space Land are 12 caliper inches and greater. If the average is just 10 caliper inches, the total caliper inches would be 40,986, and the cost of tree mitigation then rises to $4,098,600. It is reasonable to assume that the tree mitigation cost to be paid by the developer is in the range of $4 to $5 Million. The Town should calculate what is owed by the developer and enforce payment of this amount should the Town decide to allow clear cutting of the Open Space Land. Of course, in pursuit of profit maximization, the developer boldly proposes to pay nothing in connection with tree mitigation. The developer’s proposed zoning change requests that: “No mitigation shall be required of any individual lot. Each lot shall plant at least two 3.5 caliper inch 10 trees from an approved hardwood tree list. If existing native trees are preserved in the front or street-side side yards, they can be utilized to satisfy the tree planting requirement on the lot.” Further, the developer proposes two alternatives to further address mitigation: Alternate A consists dedicated trailhead parking spaces as part of the existing adjacent parking lot, a wood stairway into “Mayor’s Hill,” passive fitness stations on “Mayor’s Hill,” and a picnic area on Mayor’s Hill. Alternate B consists of deeding to the Town land that fronts Sam School Road that can be used for municipal purposes (but the municipal use would be exempted from the cumulative PD1-1 coverage test). The developer’s request, along with Alternatives A and B, are nowhere close to equivalent value for the $4 to $5 Million in tree mitigation that should be paid for the destruction of thousands of mature trees on the Open Space Land that serves as a critical view shed for the Town pursuant to the Comprehensive Plan. The Town Staff appears to repudiate the developer’s request, along with Alternatives A and B, by declaring that “all existing trees removed on individual single family lots shall require mitigation per the requirements of the Code of Ordinances." However, the Town Staff also declares that “trees located in the roadways and utility main locations as shown on the preliminary plat and civil construction plans are hereby exempt from the mitigation requirements of the Code of Ordinances.” This exemption is not in the Town’s Code of Ordinances, and there is no reason why the Town should make such a concession when the developer seeks to clear cut the Open Space Land. 6. The proposed zoning change has a negative financial impact on the Town. The current property tax rate for the Town of Westlake is .13695 per $100 of assessed value. Assuming that each of the proposed 65 units has an assessed value of $1.35M, the total property tax revenue to the Town is $120,174. However, according to various studies, including Jeffrey H. Doorman’s The Fiscal Impacts of Land Use on Local Government (University of Georgia, 2006) and the Cost of Community Services Studies (“COCS”) prepared by the American Farmland Trust, the cost to provide public services for residential land use exceeds the property tax revenue generated. In particular, in the American Farmland Trust study, the median COCS for residential land use is $1.15 for every $1.00 of property tax revenue (in other words, a net loss). Accordingly, approval of the proposed zoning change would likewise result in a loss for the Town. Based on the COCS studies, and confirmed by Mayor Wheat at the August 7th Coffee with the Mayor, the Town’s expenses will increase by more than the $120,174 of property tax revenue such that the proposed residential development will result in a net economic loss for the Town. Moreover, while $120,174 of property tax revenue would be generated, representing 8% of the total property tax revenue ($1,477,116) in the FY17-18 Westlake Budget, $120,174 is less than 1% of the total revenue in the Westlake Budget ($16,389,867). Thus, the proposed development is insignificant to the Town’s overall revenue even if one fails to account for the COCS. 7. The proposed zoning change is inconsistent with surrounding properties and will result in a loss of property value. The proposed dense development is not compatible with existing homes in the adjacent Glenwyck Farms and Granada neighborhoods. Dense development built close to the Glenwyck Farms and Granada neighborhoods means loss of property value for the Glenwyck Farms and Granada residents. 11 8. The proposed zoning change is inconsistent with the Town’s Tree City USA membership and the Town’s Vision Statement. As a member of Tree City USA, the Town should look for opportunities to preserve trees and open spaces. Here, it is easy for the Town to do this. The Town simply needs to deny the proposed zoning change. The Town has the opportunity to preserve the Open Space Land, which is arguably the last of its kind in the Town, with untouched native trees, wildlife (including deer), and a 30 foot knoll (hill) that acts as a view shed, noise barrier (from the expressway), and buffer for the Town. Also, the Town’s Vision Statement requires the Town to preserve land as open space when it has the ability to do so (like here): “Westlake is an oasis of natural beauty that maintains our open spaces in balance with distinctive development, trails, and quality of life amenities amidst an ever expanding urban landscape.” For the reasons set forth herein, the Town should deny the requested zoning change to which the developer and land owner have no entitlement and to which the developer and land owner have shown no compelling reason to (1) violate the Town’s Comprehensive Plan, (2) clear cut the Open Space Land, and (3) shave the knoll (hill) down by 20 feet, thus destroying the view shed and noise barrier for the Town. Regards, Harry Dombroski Jan Dombroski S e p t e m b e r 15 ,2 0 1 7 V I A U .S .M A I L a n d E M A I L T O :r r u t h v e i i (a )w e s t l a k e -t x .o r g T o w n C o u n c i l a n d P l a n n i n g &Z o n i n g C o m m i s s i o n M e m b e r s c /o R o n R u t h v e n ,D i r e c t o r o f P l a n n i n g a n d D e v e l o p m e n t T o w n o f W e s t l a k e 15 0 0 S o l a n a B l v d (T h e T e r r a c e ) B u i l d i n g 7 ,Su i t e 7 2 0 0 W e s t l a k e ,T X 7 6 2 6 2 R e :P r o t e s t P e t i t i o n f o r C a s e N o Z -0 6 -19 -1 7 ;Z o n i n g c h a n g e r e q u e s t f o r a p p r o x i m a t e l y 6 2 5 3 a c r e p o r t i o n o f L o t 1 ,B l o c k 3 W e s t l a k e /S o u t h l a k e P a r k #1 D e a r T o w n C o u n c i l a n d P l a n n i n g &Z o n i n g C o m m i s s i o n m e m b e r s : 1 (w e ),C C t i i .\R i M ^(Q p i I C D f c V t D k :^/\,r e s i d e a t I k .y :^B r ^ -f d c /.i f ?r ,W i )(>\..L J /<T {:^h i ^i <t :,I (w e )o p p o s e t o t h e z o 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r , B l a c k s t o n e ("B R E S o l a n a ,L L C "),h a s r e p e a t e d l y a n d s t u b b o r n l y r e f u s e d ,o v e r t h e l a s t 3 y e a r s ,t o m e e t w i t h t h e T o w n t o d i s c u s s a M a s t e r P l a n f o r B R E S o l a n a ' s p r o p e r t i e s O v e r t h e l a s t 3 y e a r s , d o z e n s o f r e q u e s t s f o r s u c h a m e e t i n g h a v e b e e n m a d e b y t h e T o w n S t a f f (T o m B r y m e r ,E d d i e E d w a r d s ,a n d R o n R u t h v e n )a n d M a y o r W h e a t A s t h e T o w n C o u n c i l a n d P l a n n i n g &Z o n i n g C o m m i s s i o n m e m b e r s a r e a w a r e ,t h e T o w n h a d a n e a r l y o p p o r t u n i t y t o b r i n g B R E S o l a n a t o t h e t a b l e w h e n i t w a n t e d t o b u i l d a p a r k i n g g a r a g e a t o n e o f t h e S o l a n a b u i l d i n g s D e s p i t e t h e f a c t t h a t B R E S o l a n a c o n t i n u e d t o r e f u s e t o d i s c u s s a M a s t e r P l a n ,o u t o f g o o d f a i t h a n d w i t h t h e g o a l o f c h a n g i n g B R E So l a n a ' s a t t i t u d e ,t h e T o w n a l l o w e d B R E S o l a n a t o b u i l d t h e p a r k i n g g a r a g e t h a t i t w a n t e d A t t h a t t i m e ,t h e T o w n S t uf f i n d i c a t e d t i u i t B R E S o l a n a w o u l d n o t o b t a i n a n o t h e r f a v o r f r o m t h e T o w n ,a n d i n p a r t i c u l a r ,a z o n i n p c h a n g e ,u n l e s s B R E S o l a n a c a m e t o t h e t a b l e a n d a g r e e d t o (I )k e e p t h e O p e n S p a c e L a n d (t h e s u bj e c t of Z -0 6 -1 9 -1 7)a s o p e n s p a c e ,a n d (2)b u i l d i t s a l l o w e d 1 0 %l o t c o v e r a g e o n i t s m o r e v a l u a b l e p r o p e r t i e s by t h e e x p r e s s w a y T h e T o w n h a s e v e n o f f e r e d i n c e n t i v e s t o B R E S o l a n a i n r e t u r n f o r B R E S o l a n a September 15, 2017 VIA U.S. MAIL and EMAIL TO: rruthven@westlake-tx.org Town Council and Planning & Zoning Commission Members c/o Ron Ruthven, Director of Planning and Development
 Town of Westlake 1500 Solana Blvd. (The Terrace) Building 7, Suite 7200 Westlake, TX 76262 Re: Protest Petition for Case No. Z-06-19-17; Zoning change request for approximately 62.53 acre portion of Lot 1, Block 3 Westlake/Southlake Park #1 Dear Town Council and Planning & Zoning Commission members: I (we), ________Melvyn E. Foster, Jr.___________________________________________, reside at ________2014 Valencia Cove, Westlake, TX 76262____________________________. I (we) oppose to the zoning change requested in Case No. Z-06-19-17 and respectfully request that you deny the requested zoning change for the following 8 reasons detailed below: (1) The proposed zoning change is not in compliance with the Land Use Plan and the 2015 Town of Westlake Comprehensive Plan, (2) the proposed 150-foot setback is contrary to the 500-foot yard setback of PD1-1 and will result in property value loss, (3) the proposed dense development is in conflict with the Town of Westlake Transfer of Development Intensity Ordinance, (4) the proposed zoning change does not meet the requirements of the Town of Westlake Code of Ordinances, (5) the proposed zoning change does not comply with tree mitigation requirements, (6) the proposed zoning change has a negative financial impact on the Town, (7) the proposed zoning change is inconsistent with surrounding properties and will result in a loss of property value, and (8) the proposed zoning change is inconsistent with the Town’s Tree City USA Membership and the Town’s Vision Statement. In addition, the zoning change request should be denied for an even more fundamental reason before the Town analyzes these 8 problems with the request. In particular, the property owner, Blackstone (“BRE Solana, LLC”), has repeatedly and stubbornly refused, over the last 3 years, to meet with the Town to discuss a Master Plan for BRE Solana’s properties. Over the last 3 years, dozens of requests for such a meeting have been made by the Town Staff (Tom Brymer, Eddie Edwards, and Ron Ruthven) and Mayor Wheat. As the Town Council and Planning & Zoning Commission members are aware, the Town had an early opportunity to bring BRE Solana to the table when it wanted to build a parking garage at one of the Solana buildings. Despite the fact that BRE Solana continued to refuse to discuss a Master Plan, out of good faith and with the goal of changing BRE Solana’s attitude, the Town allowed BRE Solana to build the parking garage that it wanted. At that time, the Town Staff indicated that BRE Solana would not obtain another favor from the Town, and in particular, a zoning change, unless BRE Solana came to ! 1 the table and agreed to (1) keep the Open Space Land (the subject of Z-06-19-17) as open space, and (2) build its allowed 10% lot coverage on its more valuable properties by the expressway. The Town has even offered incentives to BRE Solana in return for BRE Solana building its allowed 10% lot coverage on its more valuable properties by the expressway. The incentives offered by the Town include providing BRE Solana with more square footage to be built beyond the 47,230 s.f. allowed under the 10% lot coverage calculation, tree mitigation 1 credits, and relaxation of setback and building height restrictions. To date, BRE Solana has continued to refuse to come to the table. Now that a zoning change request is pending, the Town can finally insist on the BRE Solana Master Plan that is long overdue, one that will keep the subject Open Space Land as open space pursuant to the Comprehensive and Land Use Plans (and preserve the ability of the Town to place a one of a kind wooded Community Park on the North half of the Open Space Land pursuant to the Parks & Open Space Plan). To this end, in a February 29, 2016 letter to the residents of Glenwyck Farms, Mayor Wheat, speaking as Mayor of the Town of Westlake and also expressly on behalf of the Town Council, represented that the Town would “push” for the Open Space Land to remain “open and unimproved should the developer request any sort of zoning change,” just as Wilbow, the developer, is doing now: It is important to understand that the newly revised Comprehensive Plan, adopted by the Town Council in 2015, designates as Open Space the whole 62.5 acre tract of land of which the Glenwyck [500-foot] Setback is a part. See Attachment B. Although current entitlements on this 62.5 acre tract allow development, the Open Space designation is a signal to future developers that the Town will be pushing for the space to remain open and unimproved should the developer request any sort of zoning change. In the event a future developer does not agree to the Open Space designation and desires to develop the property, it is important to know that the very nature of the Solana Planned Development District gives the Town many strong tools to heavily regulate the manner in which the property can be developed. These tools range from requiring preservation of view corridors, to requiring the preservation of trees, to limiting the footprint and place of any structures and all improvements and to things as simple as the placement of trash cans. February 29, 2016 Letter from Mayor Wheat to Glenwyck Farms Residents at 4 (emphasis added). Mayor Wheat and the Town Council members should follow through with their promise in their February 29, 2016 letter to “push[] for the space to remain open and unimproved should the developer request any sort of zoning change.” It is not in the Town’s or its citizen’s best interest On January 7, 2013, pursuant to the approval of Entrada and Granada, the Town Staff (Eddie Edwards) and Trent 1 Petty (the first Town Manager and now consultant to the Town) calculated the remaining allowed square footage to be built within PD1 after approval of Entrada and Granada. See January 7, 2013 Emails Between Eddie Edwards and Trent Petty, attached as Exhibit 1. Mr. Edwards and Mr. Petty calculated the remaining allowed square footage to be 47,230 s.f. Thus, at most, BRE Solana can build only 47,230 s.f. on the Open Space Land. ! 2 to continue to make concessions to BRE Solana and get nothing in return. If it was not clear from the beginning, it is abundantly clear now that BRE Solana intends to (1) obtain concession after concession from the Town with the sole goal of maximizing profit on the “flip” of its purchase of Maguire Partners’ Solana office buildings out of bankruptcy, and (2) get out of town. In fact, BRE Solana is already half way out of town on its “flip” as it has already sold (“flipped”) two of its office buildings. BRE Solana will soon be out of Westlake and on to its next profit maximizing “flip.” In addition to BRE Solana’s refusal to meet with the Town, the proposed zoning change should be denied for the following 8 reasons: 1. The proposed zoning change is not in compliance with the Land Use Plan and the Parks & Open Space Plan of the 2015 Town of Westlake Comprehensive Plan. The requested zoning change is contrary to the Land Use and Comprehensive Plans. The Open Space Land, located within the Open Space Land District of the Land Use Plan, abuts the Glenwyck Farms and Granada subdivisions. The Comprehensive Plan states that: [T]he intent of the Open Space District is to preserve vistas and view corridors and, thereby, preserve the essence of Westlake’s pastoral setting as it experiences increasing amounts of commercial and residential development. Open Space Land Use District is meant to be primarily undeveloped with landmark landforms of the Town remaining in their natural condition, thereby preserving important views as well as natural and rural settings. 2015 Town of Westlake Comprehensive Plan. The proposed dense residential development is inconsistent with the expressed intentions of the Town Council, P&Z Commission, and the Town’s citizens, who approved the Land Use Plan to keep the Open Space Land undeveloped and in its natural state. Accordingly, residential development within the Open Space Land Use District does not comply with the 2015 Town of Westlake Comprehensive Plan. In a red herring argument, the developer argues that it is preserving open space in the Southeast portion of the 62.53 acre property. However, this portion of the property is not designated as open space pursuant to the Land Use and Comprehensive Plans. Moreover, this Southeast portion of the property is “undevelopable” according to the developer’s representative, Larry Corson, and thus, the Southeast portion will always remain as open space. This means that the developer is offering nothing to the Town in return for being able to (1) clear cut the Open Space Land, and (2) shave down, by 20 feet, the knoll (hill) that acts as view shed and noise barrier for the Town. Both (1) and (2) would be devastating to the Town’s citizens and their properties if the Town Council and P&Z Commission were to allow it. Also, the requested zoning change is contrary to The Parks & Open Space Plan that is a part of the Comprehensive Plan. The Parks & Open Space Plan calls for the only Community Park in the Town to be located on the North half of the Open Space Land. In what would be another ! 3 bad deal for the Town, the developer proposes that the Town abandon its plans for the only, one of a kind, 30 acre wooded Community Park on the North half of the Open Space Land pursuant to the Parks & Open Space Plan and instead have the 2 acre “Mayor’s Hill” with a wooden staircase replace it. Other than the building of a wooden staircase on Mayor’s Hill, which would be an eyesore and a hazard, the Town receives nothing in return because Mayor’s Hill will exist no matter what (again, as the developer’s representative has conceded, this Southeast area is “undevelopable” and will remain as open space). 2. The proposed 150-foot setback is contrary to the 500-foot yard setback of PD1-1 and will result in property value loss. The requested zoning change seeks to create a new PD6 that eliminates all of the development regulations of PD1-1. An important development condition in PD1-1 imposes a minimum size of front, side and rear yard of five hundred feet (500’) setback from Glenwyck Farms. Similarly, there exists a 500-foot setback in connection with the Granada subdivision. The development plan associated with the requested zoning change removes the Glenwyck Farms 500-foot yard setback and the Granada 500-foot setback and replaces them with a 150-foot setback. Property owners in Glenwyck Farms and Granada invested substantial monetary sums in their land and improvements in reliance on the Town’s imposition of the 500-foot yard setback and 500-foot setback, with exemplary Glenwyck Farms residents paying multiple 6 figure premiums (each) to purchase their homes that adjoin the 500-foot yard setback. At 150 feet, even for that period of the year when leaves are on the trees, the windows of the proposed dense development will be looking directly into the bedroom windows, living rooms, family rooms, and backyards of Glenwyck Farms and Granada residents. When the leaves are down in Fall/Winter/Early Spring, the view will be clear as you can see all of the way to the knoll (hill) at 500 feet away with the leaves down. Making matters even worse, the requested zoning change proposes the placement of parking lots (and presumably lighting poles) at only 150 feet away from the back yards of Glenwyck Farms and Granada residents (see the red arrows below): ! ! 4 As the Town Staff, P&Z Members, and Town Council will recall, the 500-foot yard setback was established in 1992 via Ordinance 202, and the text and history of Ordinance 202 (and its successors 588, 691, and 767) evidence that the 500-foot yard setback is a greenspace buffer. Four of the most important Town witnesses that have lived and owned the genesis of the 500- foot yard setback in the 1990s confirm that the 500-foot yard setback is a greenspace buffer. During this time, former Mayor Bradley was Chairman of the Planning and Zoning Commission. Mayor Bradley led the Town’s negotiations with IBM, the owner of the Open Space Land at the time. Mayor Bradley will testify before the P&Z Commission and the Town Council that he had express and extensive discussions with the President of IBM Realty concerning the fact that the 500-foot yard setback is a greenspace buffer that is to remain untouched and undeveloped. Mayor Bradley will further testify that the President of IBM Realty believed that the greenspace buffer would provide value to IBM’s properties by preserving open space. The President of IBM Realty also believed that the IBM development would serve as an exemplary development for the Town on how open space was to be preserved and how view sheds should be retained, including the knoll (hill) North of Glenwyck Farms and East of Granada. This is evidenced by the fact that the President of IBM Realty agreed to move 300 million square yards of dirt to create the Mayor’s Hill in order to create a greenspace buffer and view shed that did not already exist. In effect, IBM created a second knoll (hill) to the East. IBM did not need to do this to the North of Glenwyck Farms because the natural knoll (hill) already existed, and it is this natural knoll (hill) that the developer now seeks to shave down by 20 feet. As the Town Staff, P&Z Members, and Town Council will also recall, Trent Petty, the Town’s first Town Manager and current consultant to the Town, likewise confirmed that the 500-foot yard setback is a greenspace buffer and was treated that way by the owners of the Open Space Land, both IBM and subsequent owner Maguire Partners. As the Town Staff, P&Z Members, and Town Council will also recall, Glenwyck Farms homebuilder Scott Simmons testified at the January 4, 2016 P&Z Hearing (relating to the fix of the typographical error in Ordinance 691) that the Town of Westlake communicated to Glenwyck Farms homebuilders and the Glenwyck Farms developer that the 500-foot yard setback is to remain as undisturbed greenspace and is not merely a bare “setback.” As the Town Staff, P&Z Members, and Town Council will also recall, we had the opportunity to speak with Howard Dudley, former Town Alderman and owner of the land now known as Glenwyck Farms, about the 500-foot yard setback (which Mr. Dudley enacted with the other Town Alderman via Ordinance 202 in 1992). Mr. Dudley likewise confirmed that the 500-foot yard setback is to remain as undisturbed greenspace. In fact, Mr. Dudley indicated that the 500- foot yard setback was specifically designed to preserve the knoll (hill) and trees to the North of his property and create a buffer for his property with respect to future development. Mr. Dudley and the other Town Alderman were quite accurate back in 1992 because the developer’s ! 5 topography map associated with this zoning change request shows that you get over to the North Side of the knoll at 500 feet out. Moreover, the Town’s communications concerning the existence of the 500-foot yard setback and the fact that it prevents any development within 500 feet of Glenwyck Farms has been memorialized in writing. The Town of Westlake has sent written correspondence to the Glenwyck Farms developer and to Glenwyck Farms residents confirming that “any development” must occur outside of the 500-foot yard setback area. For example, on November 1, 1999, Dennis Wilson, Town Planner, sent a letter to David McMahan at Four Peaks Development, Inc. (the developer of Glenwyck Farms) in which Mr. Wilson confirms that “any development” of the Open Space Land must occur 500 feet away from Glenwyck Farms. See November 1, 1999 Letter from Dennis Wilson to David McMahan, attached as Exhibit 2. This November 1, 1999 Letter from Dennis Wilson, Town Planner, was also distributed to Glenwyck Farms residents, upon which they relied in purchasing their homes. In addition, on February 5, 2009, Tom Brymer, current Town Manager, sent a letter to Pat Cockrum, Glenwyck Farms resident, likewise confirming that “any development” of the Open Space Land must occur 500 feet away from Glenwyck Farms. See February 5, 2009 Letter from Tom Brymer to Pat Cockrum, attached as Exhibit 3. The February 5, 2009 Letter from Tom Brymer to Pat Cockrum is particularly instructive as it makes clear that “any development,” even a gas well pad site, is prohibited within the 500-foot yard setback. In other words, the 500-foot yard setback prevents “any development” within 500 feet of Glenwyck Farms, whether that development is a building, a gas well pad site, or a surface parking lot. The text of Ordinance 202 (and is successors) and the Westlake Code confirm the same. Specifically, while other clauses refer expressly to “setbacks,” the clause that creates the 500- foot yard setback has always referenced a 500-foot “yard.” Here, the Town was its own lexicographer and provided its own definition of the word “yard” in the Westlake Code of Ordinances. According to the Westlake Code, a “yard” is “open space,” and “open space” is greenspace that is “relatively free of manmade structures [such as buildings and parking lots], where water bodies, land forms [such as a knoll/hill], and vegetation [such as trees] predominate”: Yard. The word “yard” shall mean an open space, other than a court, on a lot unoccupied and unobstructed from the ground upward unless specifically otherwise permitted in this Code. Open Space. The words “open space” shall mean that land area which is relatively free of manmade structures, where water bodies, land forms, and vegetation predominate. Westlake, TX Code of Ordinances. In short, the 500-foot yard setback is a greenspace buffer according to Ordinance 202 (and its successors), the Westlake Code of Ordinances, and the Town’s representatives who, for 20 years, represented that the 500-foot yard setback is a greenspace buffer to the developer of Glenwyck ! 6 Farms, Glenwyck Farms homebuilders, and Glenwyck Farms homeowners, each of whom has financially relied on the same. If this 500-foot yard setback is removed, then the Glenwyck Farms homeowners that border the Open Space Land will lose the 6 figure premiums (each) that they paid for their homes. 3. The proposed dense development is in conflict with the Westlake Transfer of Development Intensity Ordinance. Pursuant to the expressed intent of the 2015 Comprehensive Plan and to preserve Westlake’s view corridors and scenic topography, the Westlake Transfer of Development Intensity (“TDI”) Ordinance was adopted. The Open Space Land is in a Sending District where permitted development intensity should be transferred to a Receiving District. The proposed zoning change for dense residential development is in direct conflict with the intent of the TDI Ordinance that such development occur in a Receiving District. In fact, the TDI Ordinance is designed to transfer the existing PD1-1 permitted development intensity out of the Open Space Land District. The creation of a new PD6 in place of PD 1-1 with dense residential development intensity within a Sending District is a complete abomination of the TDI Ordinance, which is designed to prevent zoning changes that increase development intensity within a Sending District. The TDI Ordinance could not have been written for a better situation than we have now. BRE Solana owns the Open Space Land, which is in a Sending District. BRE Solana also owns valuable property by the expressway that is in a Receiving District. Thus, BRE Solana can obtain incentives from the Town pursuant to the TDI Ordinance by building its allowed square footage (pursuant to the 10% lot coverage rule) on its expressway properties (all of BRE Solana’s allowed square footage can be built on its expressway properties). The fact that this deal has not already been done is a function of BRE Solana’s refusal to come to the table with the Town to talk about a master plan for its properties. 4. The proposed zoning change does not meet the requirements of the Westlake Code of Ordinances. Ordinance 101-266(i) – The proposed zoning change does not meet the following approval criteria for a planned development: 1. The requested zoning change is inconsistent with the Town's Comprehensive Plan (including the Land Use Plan and the Parks & Open Space Plan); 2. The proposed dense residential uses and the configuration of the dense residential uses are not compatible with existing and planned adjoining residential uses because no development is to occur in the Open Space Land, which is meant to serve as a buffer; ! 7 3 The proposed dense residential uses, development densities and intensities, and development regulations are not consistent with this article because no development is to occur in the Open Space Land, the proposed development densities are greater than those of the adjacent Glenwyck and Granada neighborhoods, and no development intensity is to occur in the Open Space Land Sending District of the TDI Ordinance; 4. The configuration of the proposed open space serving the proposed development is not consistent with the Town's Open Space Plan because the Open Space Plan shows contiguous open space with no development of any kind except for a community park in this particular Open Space Land District, whereas the configuration of open space serving the proposed development is non-contiguous and randomly spaced among the dense units and also outside this particular Open Space Land District; 5. No amenities of value to persons who are not residents of the proposed residential development are proposed that justify proposed residential densities or intensities in an area that is meant to be undeveloped as Open Space Land; 6. The proposed dense development does not further the public health, safety, and general welfare of the community when the Town’s Comprehensive Plan, designed to preserve view corridors and native pastoral settings, is abrogated with the dense development that wipes out the Open Space Land. Ordinance 102-241 – The proposed zoning change does not meet the following purposes for the creation of a planned development: 1. Superior design of lots or buildings is not accomplished by PD6 with lot dimensions of 80’ X 135’ and dense units that are incompatible with existing homes in Glenwyck Farms and Granada; 2. Increased recreation and/or open space opportunities for public use is not provided by PD6 because existing, contiguous, undeveloped open space is being replaced by noncontiguous open space spread between 65 dense units plus wooden stairs to the top of “Mayor’s Hill,” which is an eyesore and a hazard; 3. Rural amenities or features that would be of special benefit to the property users or community is not provided by the proposed dense development in the middle of existing open space that already provides the rural amenities and features desired; 4. The proposed PD6 does not protect or preserve natural amenities and environmental assets such as trees, creeks, ponds, floodplains, slopes or hills and viewscapes because the existing Open Space Land with dense mature trees, a knoll that provides a sound barrier from traffic on Highway 114, and a sloping hill ! 8 with viewscape for the Glenwyck and Granada neighborhoods will be destroyed by the proposed dense development; 5. The proposed PD6 does not protect or preserve existing historical buildings, structures, features or places because the proposed dense development will eliminate the existing Open Space Land, which contains the characteristic topography, views, and vistas that are the essence of Westlake’s pastoral setting; 6. The proposed PD6 does not provide an appropriate balance between the intensity of development and the ability to provide adequate supporting public facilities and services because development intensity is not to occur in this Open Space Land District and is to be sent from this area to receiving districts elsewhere in the Town. Ordinance 98-46 – The proposed zoning change is in direct conflict with the following tree preservation principles: 1. Not only will PD6 not protect against the indiscriminate clearing of trees, it will actually promote indiscriminate clearing of trees. Mass clear cutting of trees in this densely wooded Open Space Land is unavoidable in order to develop the proposed dense 65 lots with a 20-foot drop in grade of the view shed which now exists. The top area of the knoll (hill) that will be shaved down by 20 feet is particularly problematic because no trees or vegetation will survive this type of catastrophic soil removal. 2. PD6 will not protect and increase the value of residential and commercial properties within the Town because the Open Space Land District, left undisturbed in its natural state, is what protects and increases the value of the residential and commercial properties in the Town. 3. PD6 will not maintain and enhance a positive image for the attraction of new businesses and residents to the Town to the same extent as the Open Space Land District, with a Community Park among the dense trees in its natural state. 4. PD6 will not protect healthy mature trees and promote the natural ecological, environmental, and aesthetic qualities of the Town and will instead destroy the healthy mature trees in this Open Space Land District. This Open Space Land will be clear-cut for an incompatible dense development. 5. PD 6 will not preserve the rural forested character of the Town and will instead result in the annihilation of the last true piece of rural forested land in the Town. This is why the land was designated as Open Space Land. 5. The proposed zoning change does not comply with tree mitigation requirements. ! 9 In November 2016, a tree survey of the Open Space Land was purportedly conducted by the developer’s consultant, Kimley Horn, wherein based upon a sampling process, trees 6-inches and greater in diameter were tagged and counted. Conspicuously absent from the developer’s zoning change request is a copy of this Kimley Horn survey. In fact, the Town Staff notes the failure of the developer to submit the survey and that the total cost of tree mitigation is “several million dollars at a minimum”: The survey was not submitted as part of this request. Staff estimates that total cost of mitigation would be several million dollars at a minimum. 
 August 14, 2017 Staff Report at Page 89 of the August 14, 2017 P&Z Agenda. One can only assume that the survey is not favorable to the developer, especially because what little is disclosed about the survey evidences that tree mitigation payments to be paid by the developer should be many millions of dollars. In particular, by failing to disclose the Kimley Horn survey, the developer prevents the Town from calculating just how many millions of dollars are owed by the developer (the average caliper inches per Protect Tree is not disclosed). Although the Town was not provided with a copy of the Kimley Horn survey, the developer represents that that the survey determined that there were approximately 105 Protected Trees per acre on the East side of the sample area and approximately 162 Protected Trees per acre on the West side of the sample area. The proposed development will be on the West side of the subject property area. Per the developer’s Land Use Summary, 25.3 acres consists of residential areas and right-of-way that will be clear cut. Based upon 162 Protected Trees per acre and 25.3 acres of development including right-of-way, this represents 4,098.6 trees of at least 6 caliper inches that will be clear cut, not to mention thousands of other trees that are less than 6 caliper inches. Even if one assumes that every tree is only 6 caliper inches (and no more), this would represent 24,591.6 caliper inches. At $100 per caliper inch, this represents a minimum tree mitigation cost of $2,459,160. Of course, many of the trees on the Open Space Land are 12 caliper inches and greater. If the average is just 10 caliper inches, the total caliper inches would be 40,986, and the cost of tree mitigation then rises to $4,098,600. It is reasonable to assume that the tree mitigation cost to be paid by the developer is in the range of $4 to $5 Million. The Town should calculate what is owed by the developer and enforce payment of this amount should the Town decide to allow clear cutting of the Open Space Land. Of course, in pursuit of profit maximization, the developer boldly proposes to pay nothing in connection with tree mitigation. The developer’s proposed zoning change requests that: “No mitigation shall be required of any individual lot. Each lot shall plant at least two 3.5 caliper inch trees from an approved hardwood tree list. If existing native trees are preserved in the front or street-side side yards, they can be utilized to satisfy the tree planting requirement on the lot.” Further, the developer proposes two alternatives to further address mitigation: Alternate A consists dedicated trailhead parking spaces as part of the existing adjacent parking lot, a wood stairway into “Mayor’s Hill,” passive fitness stations on “Mayor’s Hill,” and a picnic area on Mayor’s Hill. Alternate B consists of deeding to the Town land that fronts Sam School Road that can be used for municipal purposes (but the municipal use would be exempted from the ! 10 cumulative PD1-1 coverage test). The developer’s request, along with Alternatives A and B, are nowhere close to equivalent value for the $4 to $5 Million in tree mitigation that should be paid for the destruction of thousands of mature trees on the Open Space Land that serves as a critical view shed for the Town pursuant to the Comprehensive Plan. The Town Staff appears to repudiate the developer’s request, along with Alternatives A and B, by declaring that “all existing trees removed on individual single family lots shall require mitigation per the requirements of the Code of Ordinances." However, the Town Staff also declares that “trees located in the roadways and utility main locations as shown on the preliminary plat and civil construction plans are hereby exempt from the mitigation requirements of the Code of Ordinances.” This exemption is not in the Town’s Code of Ordinances, and there is no reason why the Town should make such a concession when the developer seeks to clear cut the Open Space Land. 6. The proposed zoning change has a negative financial impact on the Town. The current property tax rate for the Town of Westlake is .13695 per $100 of assessed value. Assuming that each of the proposed 65 units has an assessed value of $1.35M, the total property tax revenue to the Town is $120,174. However, according to various studies, including Jeffrey H. Doorman’s The Fiscal Impacts of Land Use on Local Government (University of Georgia, 2006) and the Cost of Community Services Studies (“COCS”) prepared by the American Farmland Trust, the cost to provide public services for residential land use exceeds the property tax revenue generated. In particular, in the American Farmland Trust study, the median COCS for residential land use is $1.15 for every $1.00 of property tax revenue (in other words, a net loss). Accordingly, approval of the proposed zoning change would likewise result in a loss for the Town. Based on the COCS studies, and confirmed by Mayor Wheat at the August 7th Coffee with the Mayor, the Town’s expenses will increase by more than the $120,174 of property tax revenue such that the proposed residential development will result in a net economic loss for the Town. Moreover, while $120,174 of property tax revenue would be generated, representing 8% of the total property tax revenue ($1,477,116) in the FY17-18 Westlake Budget, $120,174 is less than 1% of the total revenue in the Westlake Budget ($16,389,867). Thus, the proposed development is insignificant to the Town’s overall revenue even if one fails to account for the COCS. 7. The proposed zoning change is inconsistent with surrounding properties and will result in a loss of property value. The proposed dense development is not compatible with existing homes in the adjacent Glenwyck Farms and Granada neighborhoods. Dense development built close to the Glenwyck Farms and Granada neighborhoods means loss of property value for the Glenwyck Farms and Granada residents. ! 11 8. The proposed zoning change is inconsistent with the Town’s Tree City USA membership and the Town’s Vision Statement. As a member of Tree City USA, the Town should look for opportunities to preserve trees and open spaces. Here, it is easy for the Town to do this. The Town simply needs to deny the proposed zoning change. The Town has the opportunity to preserve the Open Space Land, which is arguably the last of its kind in the Town, with untouched native trees, wildlife (including deer), and a 30 foot knoll (hill) that acts as a view shed, noise barrier (from the expressway), and buffer for the Town. Also, the Town’s Vision Statement requires the Town to preserve land as open space when it has the ability to do so (like here): “Westlake is an oasis of natural beauty that maintains our open spaces in balance with distinctive development, trails, and quality of life amenities amidst an ever expanding urban landscape.” For the reasons set forth herein, the Town should deny the requested zoning change to which the developer and land owner have no entitlement and to which the developer and land owner have shown no compelling reason to (1) violate the Town’s Comprehensive Plan, (2) clear cut the Open Space Land, and (3) shave the knoll (hill) down by 20 feet, thus destroying the view shed and noise barrier for the Town. Name(s): ________Melvyn E. Foster, Jr.____________________________________________ Signature(s): ____ Melvyn E. Foster, Jr._(signed)_____________________________________ ! 12