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Ordinance 2004-38 21 iA?0U020 7,A Filed for Record in KENDALL C.OUNTYP ILLINOIS STATE OF ILLINOIS ) pAU1_ ANDERSON 07-119-20117 At 09:47 am. ss ORDINANCE 52.00 COUNTY OF KENDALL ) RHSP SUrChnr9e 10,0 ORDINANCE NO. 2004- --kL AN ORDINANCE AUTHORIZING THE EXECUTION OF AN ANNEXATION AND PLANNED UNIT DEVELOPMENT AGREEMENT OF YORKVILLE HILL LANDSCAPING WHEREAS, it is in the best interest of the UNITED CITY OF YORKVILLE, Kendall County,Illinois,that a certain Annexation and Planned Unit Development Agreement pertaining to the annexation and development of the real estate described on Exhibit"A"attached hereto and made a part hereof entered into by the UNITED CITY OF YORKVILLE; and WHEREAS, said Annexation and Planned Unit Development Agreement has been drafted and has been considered by the City Council; and WHEREAS, the legal owners of record of the territory which is the subject of said Agreement are ready,willing and able to enter into said Agreement and to perform the obligations as required hereunder; and WHEREAS,the statutory procedures provided in 65 ILCS 5111-15.1-1 (2002),as amended, for the execution of said Annexation and Planned Unit Development Agreement has been fully complied with; and WHEREAS, the property is contiguous to the City. 1 r NOW THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE UNITED CITY OF YORKVILLE,KENDALL COUNTY, ILLINOIS, AS FOLLOWS: Section 1:That the Mayor and City Clerk are herewith authorized and directed to execute,on behalf of the City, an Annexation and Planned Unit Development Agreement concerning the annexation and development of the real estate described therein, a copy of which Annexation and Planned Unit Development Agreement is attached hereto and made a part hereof. Section 2:That this Ordinance shall be in full force and effect from and after its passage and approval as provided by law. WANDA OHARE JOSEPH BESCO VALERIE BURD PAUL JAMES LARRY KOT MARTY MUNNS 4— ROSE SPEARS RICHARD STICKA APPROVED by me,as Mayor of the United City of Yorkville,Kendall County,Illinois,this day of ,���,, , A.D. 20¢1_. MA OR 2 PASSED by the City Council of the United City of Yorkville,Kendall County,Illinois this v°day of A'\ , A.D. 20� . Att TY CLERK Prepared by: Law Offices of Daniel J. Kramer 1107A S. Bridge St. Yorkville, IL 60560 630.553.9500 3 STATE OF ILLINOIS ) )SS COUNTY OF KENDALL ) ANNEXATION AND PLANNED UNIT DEVELOPMENT AGREEMENT OF YORKVILLE HILL LANDSCAPING This Annexation and Planned Unit Development Agreement (hereinafter"Agreement"), is made and entered into this 121i day of w'-' , 2004,by and between the UNITED CITY OF YORKVILLE, a municipal corporation, hereinafter referred to as "CITY" and NEW YORKVILLE HILL LANDSCAPING, hereinafter referred to as "OWNER/DEVELOPER". WITNESSETH WHEREAS, OWNER/DEVELOPER owns fee simple interest to the real property which is legally described in Exhibit"A" attached hereto, consisting of approximately 5.07 acres, more or less (hereinafter"PROPERTY"); and which is depicted in the Site Plan which is attached hereto and incorporated herein as Exhibit`B"; and WHEREAS, OWNER/DEVELOPER is the owner of real property which is the subject matter of said Agreement comprising approximately 5.07 acres,more or less; and WHEREAS, the subject real property is located contiguous to the corporate boundaries of the CITY; and is not located within the corporate boundaries of any other municipality; nor is any portion thereof classified as flood plain; and WHEREAS, the CITY and OWNER/DEVELOPER agree said Planned Unit Development consisting of a single lot subdivision with the B-3 Service Business Zoning Use shall be exclusively for a landscaping business and providing for storage of nursery stock, landscaping materials and equipment and retail showroom. WHEREAS, it is the desire of CITY and OWNER/DEVELOPER to annex PROPERTY and provide for the orderly development of the subject real PROPERTY and to develop the PROPERTY in the CITY in accordance with the terms of this Planned Unit Development Agreement and the Ordinances of the CITY; as a Planned Unit Development establishing a unique open space character and to provide for the orderly flow of traffic in the development and —1— to adjoining real property; and to provide rezoning to a B-3 Service Business Zoning Use said parcel; and WHEREAS, it is the desire of the CITY and OWNER/DEVELOPER to enter into this Agreement and facilitate development of the PROPERTY pursuant to the terms and conditions of this Agreement and the Ordinances of the CITY; and WHEREAS, OWNER/DEVELOPER and CITY has or will perform and execute all acts required by law to effectuate such Agreement; and WHEREAS, it is the intent of OWNER/DEVELOPER to design a storm water management system for the subject PROPERTY that is in conformance with City Ordinances; and WHEREAS, all notices required by law relating to the rezoning of the PROPERTY to the CITY have been given to the persons or entities entitled thereto, pursuant to the applicable provisions of the Illinois Compiled Statutes; and WHEREAS, the Corporate Authorities of the CITY have duly fixed the time for a public hearing on this Agreement and pursuant to legal notice have held such hearing thereon all as required by the provisions of the Illinois Compiled Statues; and WHEREAS, the Corporate Authorities, and the Plan Commission of the CITY have duly held all public hearings relating to this Agreement all as required by the provisions of the CITY'S Ordinances and Illinois Compiled Statutes; and WHEREAS, the OWNER/DEVELOPER and CITY agree that upon execution the this Agreement the subject PROPERTY shall be designated a Planned Unit Development with an B-3 Service Business Zoning Use as set forth in the attached hereto and incorporated herein as Exhibit`B'; and WHEREAS, the OWNER/DEVELOPER agrees to abide by the landscaping provisions of which are attached hereto and incorporated by reference as Exhibit"C"; and WHEREAS, in reliance upon the development of the PROPERTY in the manner proposed, OWNER/DEVELOPER and the CITY have agreed to execute all Ordinances and other documents that are necessary to accomplish the rezoning of the PROPERTY; and NOW, THEREFORE, in consideration of the mutual covenants, agreements and conditions herein contained, and by authority of and in accordance with the aforesaid statutes of the State of Illinois, the parties agree as follows: A. That the subject real property described in the attached Exhibit"A" shall be annexed to the CITY and that the development of said property shall be subject to approval of all Ordinances —2— of the CITY; Site Plan approval, engineering consultant approval by CITY staff or outside review engineering as elected by the CITY and Site Plan approval by the City Council in conformance with the United City of Yorkville Zoning Ordinance Subdivision Control Ordinance, City Reimbursement of Consultants and of Review Fees Ordinances, Municipal Building Fee, Weather Warning Siren Fee, City Land-Cash Ordinance, and City Development Fee Ordinance, payable at the time of Site Plan approval,which have been voluntarily contracted to between the parties and agreed to by OWNER/DEVELOPER as a condition of approval of the Planned Unit Development Agreement. That OWNER/DEVELOPER shall permit the CITY Building and Zoning Department to inspect the PROPERTY to determine the improvements to be completed. B. OWNER/DEVELOPER, except to the extent varied by this Agreement the Site Plan shall comply with all requirements as set out in the United City of Yorkville Zoning Ordinance and Subdivision Control Ordinance at the time of execution of this Agreement. No change in the United City of Yorkville Zoning Ordinance, Subdivision Control Ordinance, City Reimbursement of Consultants and of Review Fees Ordinance, and City Development Fee, which have been enacted subsequent to the execution of this Agreement shall alter the lot sizes, setbacks,performance standards, or other standards or requirements for this Development except as provided for in those Ordinances in effect at the time of execution of this Agreement. Developers, however,will be bound by changes in building codes,building material changes and the like that may be enacted by the CITY, so long as the same are applied in a nondiscriminatory manner throughout the CITY. The City agrees that should the United City of Yorkville revise, alter or otherwise modify the parking requirements contained in its Zoning Ordinance to provide for a reduction from the standard as of the date of this Agreement, the City will allow the OWNER/DEVELOPER to comply with reduced standard. C. Utilities and Public Improvements. That On-Site infrastructure construction and engineering shall be governed by the standards contained in the Yorkville Subdivision Control Ordinance and other applicable Ordinances unless specifically addressed in the following, in which case this Agreement shall control. Roadway right-of-ways,widths of streets, and roadway construction standards shall comply with the requirements as set out on the approved Site Plan. D. Sanitary Sewer Facilities. 1. The OWNER/DEVELOPER shall cause the Subject Property, to be annexed to the Yorkville-Bristol Sanitary District ("Yorkville Bristol"or"YBSD") for the purpose of extending and connecting to the sanitary sewer lines and treatment facilities of Yorkville-Bristol should said service be extended within a distance specified by Ordinance to the PROPERTY. The installation of sanitary sewer lines to service the Subject Property and the connection of such sanitary sewer lines to the existing sewer lines of Yorkville-Bristol shall be carried out in substantial compliance with the Final Engineering as approved by the CITY for each Phase of Development. The CITY shall fully cooperate with OWNER/DEVELOPER in obtaining such permits as may be required from time to time by both federal and state law, including,without —3— limitation, the Illinois Environmental Protection Act,permitting the construction and connection of the sanitary sewer lines to the Yorkville-Bristol facilities, in order to facilitate the development and use of each Phase of Development of the Subject Property. The sanitary sewer mains constructed by DEVELOPER for each Phase of Development which are eighteen(18) inches or greater in diameter("Large Lines") shall be conveyed to Yorkville-Bristol and Yorkville-Bristol shall take ownership of and, at its expense,be responsible for the ongoing care,maintenance, replacement and renewal of said Large Lines, and the sanitary sewer lines which are less than eighteen inches in diameter("Small Lines") shall be conveyed to the CITY and the CITY shall take ownership of and, at its expense,be responsible for the ongoing care, maintenance, replacement and renewal of said Small Lines following the CITY's acceptance thereof, which acceptance shall not be unreasonably denied or delayed. 2. In the event the CITY requires OWNER/DEVELOPER to oversize water mains, sanitary sewer mains, or storm sewer lines,the parties shall enter into a written agreement specifically providing that said costs shall be reimbursed by the CITY, or be the subject of a Recapture Agreement and Recapture Ordinance in favor of OWNER/DEVELOPER before OWNER/DEVELOPER is required to perform any oversizing. 3. Any storm water detention facility constructed on-site shall comply with the requirements as set out on the approved Preliminary Plat,Preliminary and Final Engineering Plans approved by the City Engineer. 4. That off-site improvements for the provision of water, sanitary sewer and other utility and infrastructure services shall be provided by OWNER/DEVELOPER according to the City Subdivision Control Ordinance. After the installation of improvements by OWNER/DEVELOPER,the United City of Yorkville shall deliver to the subdivision site potable water characterized by such minimum flows and pressures as required by the Illinois Environmental Protection Agency. 5. The CITY agrees to negotiate with OWNER/DEVELOPER the passage of a Recapture Ordinance for any off-site sanitary sewer or water main improvement or on-site sanitary sewer or water main improvement benefiting future users that are contiguous or within a reasonable service area of the subject subdivision Any recapture shall be done by Ordinance after the CITY has reviewed Engineer's drawings,pursuant to the Engineer's Estimate of Cost and Actual Cost of the Improvements submitted by OWNER/DEVELOPER, and approved by a majority vote of the City Council. 6. OWNER/DEVELOPER and CITY agree that easements are necessary for off-site improvements to serve said property with utility and municipal services. The United —4— City of Yorkville hereby agrees to use its best efforts, including condemnation, to assist the OWNER/DEVELOPER in the acquisition of easements or permission to use easements from Kendall Township, Kendall County and the State of Illinois. The actual cost of acquisition of any easement shall be at the expense of OWNER/DEVELOPER. E. The Planned Unit Development being approved, as part of this Agreement shall be constructed in substantial conformance with the Site Plan attached hereto and incorporated herein as Exhibit `B". Deviations from this Agreement shall be allowed only if approved by majority vote of the City Council, or upon City Engineer's approval as to technical parts of engineering plans. OWNER/DEVELOPER further agrees to conform its Preliminary and Final Landscape, Preliminary and Final Engineering and Final Site Plan to provide the buffering and screening agreed to as set out in the Preliminary Site Plan for the Subject Property and Exhibit"C". Prior to approval of the Final Site Plan, OWNER/DEVELOPER agrees to obtain an estimate cost of the landscape improvements referenced to in Exhibit"C" and agrees to post a letter of credit or bond with the CITY for the amount of said landscape improvements. CITY agrees to reduce and/or release the letter of credit or bond for the landscaping improvements in accordance with the policies in place at the time of execution of this Agreement. The OWNER/DEVELOPER agrees that prior to the issuance of any building permit the site will conform to the CITY Landscaping Ordinance. F. Approval of Final Plat and Final Engineering. Upon the submittal by DEVELOPER to the CITY of a Final Site Plan("Final Site Plan"), final landscape plan ("Final Landscape Plan") and final engineering plans ("Final Engineering") for the Development,which substantially conform with the Preliminary Plans as to such Phase of Development, the CITY shall promptly approve such Final Plan so long as it is in substantial conformity with the approved Preliminary Plan, and that DEVELOPER is not in material breach or default as to any terms of this Agreement, Final Landscape Plan and Final Engineering in compliance with applicable law and cause the Final Plan to be duly recorded with the Kendall County Recorder's office provided DEVELOPER complies with applicable CITY regulations pertaining to (i) the posting of the applicable Security Instruments, as defined in Paragraph I of this Agreement, for such Phase of Development, (ii)the payment of applicable fees to the CITY as provided for in this Agreement and(iii)the procurement of such approvals as may be required by other governmental authorities with jurisdiction thereover. The Final Plat, Final Landscape Plan and Final Engineering are referred to herein collectively as the "Final Plans". G. AMENDMENTS TO ORDINANCES. All ordinances, regulations, and codes of the CITY, including,without limitation those pertaining to subdivision controls, zoning, storm water management and drainage, building requirements, official plan, and related restrictions, as they presently exist, except as amended, varied, or modified by the terms of this Agreement, shall apply to the Subject Property and its development for a period of five (5) years from the date of this Agreement except to the extent this would affect the United City of Yorkville ISO Insurance Policy in which case said changes would be applicable to OWNER/DEVELOPER 90 days after —5— passage by the City Council, so long as said changes are applied uniformly throughout the City. Any Agreements, repeal, or additional regulations which are subsequently enacted by the CITY shall not be applied to the development of the Subject Property except upon the written consent of DEVELOPER during said five(5)year period. After said five(5) year period, the Subject Property and its development will be subject to all ordinances, regulations, and codes of the CITY in existence on or adopted after the expiration of said five (5) year period,provided, however, that the application of any such ordinance, regulation or code shall not result in a reduction in the number of residential building lots herein approved for the Subject Property, alter or eliminate any of the ordinance variations provided for herein, nor result in any subdivided lot or structure constructed within the Subject Property being classified as non-conforming under any ordinance of the CITY. The foregoing to the contrary notwithstanding, in the event the CITY is required to modify, amend or enact any ordinance or regulation and to apply the same to the Subject Property pursuant to the express and specific mandate of any superior governmental authority, such ordinance or regulation shall apply to the Subject Property and be complied with by DEVELOPER, provided, however, that any so called"grandfather"provision contained in such superior governmental mandate which would serve to exempt or delay implementation against the Subject Property shall be given full force and effect. H. PROCEDURE FOR ACCEPTANCE OF ANY PUBLIC IMPROVEMENTS. The public improvements constructed as a part of the development shall be accepted by the CITY pursuant to the provisions of the Subdivision Ordinance. The CITY shall exercise good faith and due diligence in accepting said public improvements following DEVELOPER's completion thereof in compliance with the requirements of said ordinance, and shall adopt the resolution accepting said public improvements not later than thirty(30) days following the approval of the as built plans. G. GENERAL PROVISIONS. Enforcement. This Agreement shall be enforceable in the Circuit Court of Kendall County by any of the parties or their successors or assigns by an ap- propriate action at law or in equity to secure the performance of the covenants and agreements contained herein, including the specific performance of this Agreement. This Agreement shall be governed by the laws of the State of Illinois. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the OWNER/DEVELOPER and their successors in title and interest, and upon the CITY, and any successor municipalities of the CITY. It is understood and agreed that this Agreement shall run with the land and as such, shall be assignable to and binding upon subsequent grantees and successors in interest of the OWNER/DEVELOPER and the CITY. The foregoing to the contrary notwithstanding, the obligations and duties of OWNER/DEVELOPER hereunder shall not be deemed transferred to or assumed by any purchaser of a lot —6— improved with a dwelling unit who acquires the same for residential occupation, unless otherwise expressly agreed in writing by such purchaser. This Agreement contains all the terms and conditions agreed upon by the parties hereto and no other prior agreement, excepting the Annexation Agreement it amends,regarding the subject matter hereof shall be deemed to exist to bind the parties. The parties acknowledge and agree that the terms and conditions of this Agreement, including the payment of any fees,have been reached through a process of good faith negotiation,both by principals and through counsel, and represent terms and conditions that are deemed by the parties to be fair, reasonable, acceptable and contractually binding upon each of them. Notices. Any notices required hereunder shall be in writing and shall be served upon any other party in writing and shall be delivered personally or sent by registered or certified mail,return receipt requested,postage prepaid, addressed as follows: If to the CITY: United City of Yorkville Mayor Arthur F. Prochaska, Jr. 800 Game Farm Rd. Yorkville, IL 60560 With a Copy to: United City of Yorkville's Attorney Law Offices of Daniel J. Kramer 1107A. S. Bridge St. Yorkville, IL 60560 If to the OWNER/ Yorkville Hill Landscaping DEVELOPER: 8591 Route 126 Yorkville, IL 60560 With a Copy to: Attorney John McAdams 624 W. Veterans Parkway Suite D Yorkville, IL 60560 Or to such other addresses as any party may from time to time designate in a written notice to the other parties. Severability. This Agreement is entered into pursuant to the provisions of Chapter 65, Sec. 5/11-15.1-1, et seq., Illinois Compiled Statutes (2002). In the event any part or portion of this Agreement, or any provision, clause,word, or designation of this Agreement is held to be invalid by any court of competent —7— jurisdiction, said part,portion, clause, word or designation of this Agreement shall be deemed to be excised from this Agreement and the invalidity thereof shall not effect such portion or portions of this Agreement as remain. In addition, the CITY, OWNER, and DEVELOPER shall take all action necessary or required to fulfill the intent of this Agreement as to the use and development of the Subject Property. Agreement This Agreement, and any Exhibits or attachments hereto, may be amended from time to time in writing with the consent of the parties,pursuant to applicable provisions of the City Code and Illinois Compiled Statutes. This Agreement may be amended by the CITY and the owner of record of a portion of the Subject Property as to provisions applying exclusively thereto, without the consent of the owner of other portions of the Subject Property not affected by such Agreement. Conveyances. Nothing contained in this Agreement shall be construed to restrict or limit the right of the OWNER/DEVELOPER to sell or convey all or any portion of the Subject Property,whether improved or unimproved. Necessary Ordinances and Resolutions. The CITY shall pass all ordinances and resolutions necessary to permit the OWNER/DEVELOPER, and their successors or assigns, to develop the Subject Property in accordance with the provisions of this Agreement, provided said ordinances or resolutions are not contrary to law. The CITY agrees to authorize the Mayor and City Clerk to execute this Agreement or to correct any technical defects which may arise after the execution of this Agreement. Term of Agreement. The term of this Agreement shall be for five (5) years. In the event construction is commenced within said five year period all of the terms of this Agreement shall remain enforceable despite said time limitation, unless modified by written agreement of the CITY and DEVELOPER/OWNER. Captions and Paragraph Headings. The captions and paragraph headings used herein are for convenience only and shall not be used in construing any term or provision of this Agreement. Recording. This Agreement shall be recorded in the Office of the Recorder of Deeds, Kendall County, Illinois, at the expense of OWNER/DEVELOPER. Recitals and Exhibits. The recitals set forth at the beginning of this Agreement, and the exhibits attached hereto, are incorporated herein by this reference and shall constitute substantive provisions of this Agreement. Counterparts. This Agreement may be executed in counterparts, each of which —8— shall be deemed an original,but all of which together shall constitute one and the same document. No Moratorium. The CITY shall not limit the number of building or other permits that may be applied for within any opened phase due to any CITY imposed moratorium and shall in no event unreasonably withhold approval of said permits or approval for the Final Plat of any Phase of the subdivision. Nothing contained herein shall effect any limitations imposed as to sanitary sewer or water main extensions by the Illinois Environmental Protection Agency, or Yorkville- Bristol Sanitary District. (Please include language stating that the City has adequate water sources/availability to serve the Development) Time is of the Essence. Time is of the essence of this Agreement and all documents, agreements, and contracts pursuant hereto as well as all covenants contained in this Agreement shall be performed in a timely manner by all parties hereto. Exculpation. It is agreed that the CITY is not liable or responsible for any restrictions on the CITY's obligations under this Agreement that may be required or imposed by any other governmental bodies or agencies having jurisdiction over the Subject Property, the CITY, the OWNER/DEVELOPER, including,but not limited to, county, state or federal regulatory bodies. IN WITNESS THEREOF, the undersigned have hereunto set their hands and seals this • ' day of, 2004. UNITED CITY OF YORKVILLE, Kendall Count , Illinois By: MAYOR Attest: f CLERK —9— OWNER/DEVELOPER: YORKVILLE H •L LANDSCAPING Attest: iU/-,( � 2 Z� i 7 Dated: 7 — -10— �XVl1Ul� '%A LEGAL DESCRIPTION THAT PART OF THE SOUTHWEST QUARTER OF SECTION 3, TOWNSHIP 36 NORTH, RANGE 7 EAST OF THE THIRD PRINCIPAL MERIDIAN DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTHEAST CORNER OF SAID SOUTHWEST QUARTER; THENCE NORTH ALONG THE EAST LINE OF SAID QUARTER SECTION TO THE CENTER LINE OF THE STATE BOND ISSUE ROUTE 126 FOR THE POINT OF BEGINNING; THENCE NORTH ALONG THE EAST LINE OF SAID QUARTER SECTION TO A POINT 18.74 CHAINS NORTH OF THE SOUTHEAST CORNER OF SAID QUARTER SECTION; THENCE WEST TO THE CENTER LINE OF STATE BOND ISSUE 126 AFORESAID; THENCE SOUTHEASTERLY ALONG SAID CENTER LINE TO THE POINT OF BEGINNING, IN THE TOWNSHIP OF KENDALL, KENDALL COUNTY, ILLINOIS. _ ` PLAT OF :SVW.VEY O xv B.IrT Of ME-'SOU^;dESr '•arE4..u<_°••7^N.e.TOW..S.: NOR: : .'•_ S F-F T' T+, ._ SC a n:.. 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