PZ - Applicant Supplemental Letter to Staff Report1
Charlene Way
From:Brian Ballard <BBallard@hawleytroxell.com>
Sent:Thursday, October 19, 2017 11:22 AM
To:Sonya Allen; Caleb Hood
Cc:Machelle Hill; C.Jay Coles; Charlene Way; Barbara Shiffer; 'Craig Slocum'; 'James Marsh'
Subject:RE: Linder Village Letter Response to Staff Report [IWOV-IMANAGE.FID657957]
Attachments:10065630_1_2017.10.19 Revised Supplemental Letter to Merdian Staff.pdf
Sonya: Attached please find a Supplemental Letter, which provides information in supplement to the Application, and
responds to the Staff Report. As I mentioned in my previous email, upon your review of same, it would be most
appreciated if you had a discussion with Dave. I have provided Dave with a copy of the Letter, of course.
Thank you.
Best regards,
Brian
BRIAN L. BALLARD
Partner
direct 208.388.4868
fax 208.954.5203
email bballard@hawleytroxell.com
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From: Dave McKinney [ mailto:ldm@ctcweb.net ]
Sent: Wednesday, October 18, 2017 6:22 PM
To: 'Sonya Allen'; 'Caleb Hood'
Cc: mhill@meridiancity.org ; cjcoles@meridiancity.org ; cway@meridiancity.org ; bshiffer@meridiancity.org ; 'Craig Slocum';
'James Marsh'; Brian Ballard; joehuarte@gmail.com
Subject: Linder Village Letter Response to Staff Report
Sonya, per your recent email to Craig Slocum, attached is a letter response from applicant regarding Linder Village and
the recent staff report. Please let me know if you have any questions. I have copied the individuals you included in your
email.
2
Best,
David McKinney
DMG
208-577-8332
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spam.
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BRIAN L. BALLARD
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October 19, 2017
VIA E-MAIL
Caleb Hood and Sonya Allen
Planning Department - City of Meridian
33 East Broadway Avenue, Suite 102
Meridian, Idaho 83646
Re: Linder Village
Annexation & Zoning, Preliminary Plat and Access Modification Approval/Variance (to
Ordinance UDC 11-3H-4B.2 regarding Hwy 20/26)
1225 West Chinden Boulevard
Meridian, Idaho 83642
File No. H-2017-0088
Dear Caleb and Sonja:
This letter, in Part 1, is made in supplementation of the application (the "Application") made by
Lynx Investments, LP, CCPD Inc., and DMG Real Estate Partners, LLC (the "Applicant") on
September 15, 2017, for Annexation and Zoning, Preliminary Plat, and Access Modification
Approval (Variance) to Ordinance UDC 11-3H-4B.2 for the project called "Linder Village."
This letter, in Part 2, also responds to the Staff Report received from Staff on October 17, 2017.
PART 1
As a result of meetings and discussions with neighboring property owners (the first
neighborhood meeting was held April 26, 2017, and a second meeting was held on site on
October 11, 2017), discussions with Meridian City Planning Department Staff, and additional
design work by the Applicant, revised site designs, partly in response to neighborhood
comments, have been submitted and are now part of the file.
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Also as a result of these meetings and discussions, it has become apparent that supplementation
of the Application , may prove helpful to Staff and to the Planning & Zoning Commission in its
considerations of the Application and of certain issues raised by opponents to the development.
In particular, this Supplement provides additional information regarding the Application's
adherence to and consistency with the relevant provisions of the Meridian City Code and the
2011 City of Meridian Comprehensive Plan, as amended in 2013, 2014 and 2016
("Comprehensive Plan").
Despite the zoning of the development site in the County as Rural-Urban Transition (RUT), and
despite the underlying Comp Plan designation of Mixed Use Community (MU-C), both of which
anticipate the eventual transition of the use of the site to a mix of commercial, residential, office,
civic and related uses, neighborhood opponents have objected to the proposed development of
the site for this mixed-use based on their misunderstanding of the nature and purpose of the
Comp Plan and their assertions based on that misunderstanding. This Supplement is intended to
help to dispel those misunderstanding and assertions.
I.
Consistency with the Comprehensive Plan
Although comprehensive plans are not in and of themselves enforceable zoning ordinances,
consideration is given to the policies and objectives of the Comprehensive Plan and the
consistency of the Application with those goals. The reality is that the Application is consistent
with and furthers the goals of the Comprehensive Plan.
The following key points set forth the status of comprehensive plans as policy and guideline, not
law:
• The Idaho Supreme Court has consistently held that comprehensive plans are not
legally controlling zoning laws. Ultimately, as required by Idaho Code § 67-6511, any zoning
must "be in accordance with the policies" in the plans, but those polices are policies and not
mandatory law. The policies in the plans merely guide decisions.
• A comprehensive plan reflects the desirable goals and objectives or future
circumstances for development within a jurisdiction. Comprehensive plans serve to guide and
advise the governmental agencies responsible for making zoning decisions. But, comprehensive
plans are not law and do not set forth mandatory requirements.
• It is well recognized that the zoning ordinance ultimately approved by the
Council, upon recommendations from the Commission, may diverge from what is suggested in
the comprehensive plan. The comprehensive plan, then, is a tool for evaluating zoning decisions,
and although decisions must be in "accordance" with the plan, they do not have to strictly
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comply with the provisions of the plan. In fact, Idaho's courts have recognized that it is not only
likely, but expected, that applications will not comply with all provisions of a comprehensive
plan.
• Whether a zoning decision sufficiently conforms to or is sufficiently consistent
with the Comp Plan is the key. And that requires a case-by-case factual inquiry into whether that
which is proposed is in conformity and is consistent with the Comp Plan as interpreted and
weighed by the decision-making body, and is then based upon findings of fact and conclusions of
law made by the decision-making body.
• Consistence and conformity with the Comp Plan is not controlled by the Comp
Plan itself. As set forth in the prefatory comments to the Meridian Comprehensive Plan, it is
made clear that whereas the Comp Plan "is an official policy guide for decisions concerning the
physical development of the community," the Comp Plan "is not a set of standards or a means to
enforce the City Code." Instead, the Comp Plan "indicates, in a general way, how the
community should develop." City of Meridian Comprehensive Plan (adopted April 19, 2011, as
amended November 19, 2013, September 9, 2014, and October 11, 2016), Chapter 1, p.2
(emphasis added).
Accordingly, with the understanding that a comprehensive plan is not mandatory law and is,
instead, a policy and a guideline, and that each application is to be considered on a case-by-case
analysis of the facts, if it is determined by the Commission, following an analysis of the facts
presented, that Linder Village sufficiently comports with and is sufficiently consistent with the
policies and guidelines of the Meridian Comprehensive Plan and that the zoning ordinance to be
adopted will be "in accordance with" the comprehensive plan, then, the Application is entitled to
a positive recommendation by the Commission to the City Council.
The determination of whether the zoning ordinance is in accordance with the comprehensive
plan is one of fact: "What a governing body charged to zone "in accordance with" under Section
67-6511 must do is make a factual inquiry into whether the requested zoning ordinance or
amendment reflects the goals of, and takes into account those factors in, the comprehensive plan
in light of the present factual circumstances surrounding the request." Bone v. City of Lewiston,
107 Idaho 844, 850, 693 P.2d 1046, 1052 (1984).
What opponents urge, incorrectly, among other things, is that the language in a "Next Steps"
future list of "Goals, Objectives & Action Items" somehow can be used to elevate the Meridian
Comprehensive Plan to more than the controlling statutes and applicable caselaw permit, that
being that instead of just guidelines, the guidelines have somehow been transformed, by repeated
references thereto, into "explicit requirements" that must be followed. Joe Marshall Letter,
dated October 3, 2017.
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Any explicit requirements for development are required, by law, to be set forth in the zoning
ordinance to be adopted by the City Council, following recommendation by the Commission,
after the Commission has considered the comprehensive plan and other evidence gathered
through the public hearing process. Idaho Code § 67-6511.
The language of 7.01.01H, in the concluding pages of the Comp Plan in a section that is entitled
"Next Steps" sets forth for future implementation, the following:
"Require that the Planning and Zoning Commission duties include detailed review
of the adopted Comprehensive Plan at least once a year and that decisions
explicitly reflect support and advance of the Plan as the primary factor of
approval."
This is an aspirational, on-going future goal, objective and action item as may be part of an
"Implementation Plan" yet to be drafted. This future goal is not part of the Comprehensive Plan
as something to be considered in determining whether a currently proposed zoning ordinance is
in accordance with the current Comprehensive Plan, and it should not be characterized or
represented as such. This aspirational goal cannot be used to elevate the Comprehensive Plan
into having a status that is more than is statutorily permitted or allowed under applicable
caselaw.
A Comprehensive Plan is not a zoning law or a displacement of existing zoning law that set forts
explicit and mandatory requirements. A Comprehensive Plan is a statement of policies and
guidelines that assist in zoning decisions.
II.
Existing Zoning and Existing Comp Plan and Future Land Use Map
The land comprising Linder Village is currently zoned Rural-Urban Transition (RUT) and is a
zone that contemplates "development of property within areas of city impact, consistent with the
goals and policies of the applicable city comprehensive plan" and "redevelopment of property to
higher densities when urban public facilities are extended." Ada County Zoning Ordinance 8-2B-
1. Because the land is within Meridian's Area of City Impact and is adjacent to Meridian's
boundaries, Meridian has identified the land on its future land use map, a mandatory component
of its comprehensive plan. The use designated on Meridian's Future Land Uses Map (FLUM)
for the land is Mixed Use Commercial (MU-C). Accordingly, Linder Village, from a land-use-
legal-viewpoint, is poised perfectly for annexation (being within the Meridian City Impact Area)
with a use proposed that is precisely contemplated by the Meridian Comprehensive Plan and the
FLUM. The mixed-uses proposed for Linder Village match up. No Comprehensive Plan
amendment is proposed. No change is proposed to the recommended MU-C designation for
commercial. No change is planned for the recommended designation of Medium Density
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Residential (MDR) for residential. What is now proposed, Linder Village, is what Meridian has
long planned for as an acceptable and proper use of the land.
III.
Proposed Uses
The Meridian Comp Plan calls for community-serving uses, with the expressed intent being to
integrate a variety of uses, including "residential, and to avoid mainly single-use and strip
commercial type buildings." City of Meridian Comprehensive Plan, p. 27. (Adopted April 19,
2011, as amended November 19, 2013, September 9, 2014, and October 11, 2016.) These
community-serving uses are encouraged at various time in the Comp Plan to "incorporate
connectivity with adjacent uses and area pathways." Id. at page 21.
There are several other references in the Meridian Comp Plan to community connectivity, and
connectivity between uses. The Circulation Plan already submitted by the Applicant and on file,
clearly shows an incorporation of connectivity in a manner conducive to foot and bike traffic
from surrounding neighborhoods, with an exclusion of commercial traffic, and a funneling of
interior motor vehicle traffic to the arterials. It should be noted that there is no available access
to Fox Run, although a request for same was made, and such request was not granted, so that
option is not available.
Sample uses appropriate in MU-C areas include: All MU-N categories (namely, townhouses,
multi-family developments, neighborhood grocer, drug stores, coffee/sandwich/ice-cream shops,
vertically integrated buildings, live-work spaces, dry cleaner/laundromat, salons/spas, daycares,
neighborhood-scale professional offices, medical/dental clinics, gift shops, schools, parks,
churches, clubhouses, public uses, and other appropriate neighborhood-scale uses), community
grocer, clothing stores, garden centers, hardware stores, restaurants, banks, drive-thru facilities,
auto service station, and retail shops, and other appropriate community-serving uses.
The proposed uses for Linder Village fall precisely within the sample uses set forth in the
Meridian Comprehensive Plan for a Mixed Use Community. Further, in particular deference to
one of the Comp Plan's suggested items for consideration in the review of development
applications, Linder Village has proposed a mix of more than three land uses, to wit: residential,
commercial, office, live/work, entertainment and civic. The same are depicted on the Use Area
Plan that has already been submitted by the Applicant and is on file.
It is worth mentioning that Linder Village has already contributed with respect to civic use and
connectivity, and such should be considered in an analysis of the facts. In 2008, in response to a
request from the City of Meridian and the Meridian Fire Department for a sidewalk and signal
easement for the fire station across Linder Road, such an easement was granted across land that
is a part of Linder Village. Contributing to the ability of the Fire Department to more quickly
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respond to all neighboring areas is a part of connectivity. The converse of this would be that to
deny the City's and the Fire Department's request would be to defeat connectivity in that the
neighboring community would not have more direct Fire Department access.
As an additional note, the size of the community grocer is shown as being 85,000 square feet.
Lest there be any confusion on this point, the size of the community grocer is properly proposed
in reliance upon another of the suggested items for consideration in the review of development
applications, that being the final bullet point on page 28 of the Comp Plan which provides:
"Where the development proposes public and quasi-public uses to support the
development above the minimum 5%, the developer may be eligible for additional residential
densities and/or an increase to the maximum building footprint."
The Linder Village development proposes public and quasi-public uses that exceed this 5%
minimum, including, without limitation, the use shown as "Community Meeting Space" near the
"Esplanade/Public Plaza" area on the Site Plan already submitted by the Applicant and on file.
Accordingly, from a land-use-legal-viewpoint, there is demonstrated conformance and
consistency with guidelines of the Meridian Comprehensive Plan and the zoning designations
proposed.
IV.
Variance/Access/ITD
Following years of working closely with ITD and the City of Meridian to maintain mobility and
provide for increased capacity and safety on Chinden Boulevard, the Applicant received
approval from ITD for two (2) access points, pursuant to letters from ITD dated February 24,
2017, and July 28, 2017, both of which are on file as exhibits to the revised Application, dated
September 15, 2017. Based on these ITD letters, and for other good reasons set forth below, the
Applicant has requested a modification/variance to UDC 11-3H-4B.2 to allow access via
Chinden Boulevard (SH 20/26).
Specifically, the Applicant is proposing one (1) access relocation and one (1) new access point to
Chinden Boulevard (SH 20/26), as follows:
Site Access A (right in-right-out only), a relocation to approximately 450 ft. west of
Bergman Way; and
Site Access B (signalized), at the intersection at Bergman Way.
Pursuant to a meeting between ITD, the Applicant, the City of Meridian, WinCo and Costco on
February 13, 2017, and a follow up meeting between ITD and the Applicant on July 12, 2017,
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ITD gave its approval for both Site Access A and Site Access B, per the letters referenced above.
ITD, in its February 24, 2017 letter, specifically set forth that if the Applicant was in agreement
with the conditions set forth in the letter (Applicant was and continues to be in agreement with
same) then the Traffic Impact Study submitted by the Applicant was "acceptable from a state
highway access, safety and mobility standpoint." ITD, in its July 28, 2017 letter, specifically
noted that the Applicant's plan was "an effective plan to maintain safety and mobility."
Lest there be any further confusion, it should be noted that at the first meeting with ITD, the
owner of Fox Run was present at that meeting and a shared access at the Fox Run signal was
requested by ITD of the owner. The owner specifically declined the request. That alternative
exhausted, and the Fox Run access having already been obtained by that owner at less than the
half mile mark, the access at the Bergman intersection was approved. Circumstances not the
fault of the Applicant combined to cause a need create an access at Bergman that could be
approved and was approved by ITD, in particular from a safety and mobility standpoint.
Specifically, the requirements of UDC 11-5B-4 are met as follows:
• § 11-3H-3 of the UDC authorizes the City Council to apply modifications to the
standards of Article H upon the recommendation of ITD. In the ITD letters, ITD approved the
proposed access points, subject to conditions set forth therein. Because the ITD recommendation
allows modification, and because of the fact that access points to state highways (other than at
the section or half mile) have been previously approved in the district (for example, Hightower,
Meridian Town Center and Paramount), the granting of the variance will not grant a right or
privilege that has not otherwise been allowed in the district.
• Because of the various mix of uses proposed and the physical characteristics of
the site which require access points to be constructed in the proposed locations (the limiting
physical characteristics being that a connection to Chinden Boulevard at the sections or half mile
is not practical due to patterns of development; that there is already the close location of an
existing, non-shared signalized access aligned with Fox Run Way to the east; and that the
proposed location of the signalized access for Linder Village is better aligned with Bergman
Way that anywhere else), granting the requested variance would relieve an undue hardship
because of characteristics of the site.
• The signalized access alignment with Bergman Way and the satisfaction of all of
the other conditions imposed by ITD (installation of deceleration lanes, access channelization,
clear site distance, specified lane configurations, interconnection of signals, additional and
dedicated turn lanes, and so forth, as more particularly set forth in the ITD approval letters) will
maintain and improve safety and efficiency of traffic movement along Chinden Boulevard (US
20/26), and therefore will not be detrimental to the public health, safety and welfare.
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PART 2
The following is Applicant's partial response to the Staff Report received by the Applicant via
email from Sonya Allen, Associate City Planner, sent on October 17, 2017, for the Planning and
Zoning Commission public hearing scheduled for October 19, 2017:
II. SUMMARY RECOMMENDATION:
Staff correctly notes that the Variance does not require action from the Commission
because the City Council is the decision making body. Staff recommendation of
denial seems inappropriate for a matter that should only be presented to the City
Council. The recommendation has the potential to be prejudicial in its effect and to
violate Applicant's rights to due process and a fair hearing.
Said differently, since the Variance is the province of the City Council, neither Staff
nor the Commission should recommend for or against the Variance at the
Commission level and should leave that to the discretion of City Council. Further,
ITD solely controls SH 20/26 (Chinden) and ITD has determined that the access
points meet ITD policies for SH 20/26. Applicant sought access through adjacent
development and it was denied by the owner of that adjacent development. Applicant
had no choice but to accept ITD's recommended access points in order to fully access
Applicant's property, and, following Staff direction, request the Variance under City
Code.
V. PROCESS FACTS:
A. Staff correctly notes that the matter of a Variance does not require a public
hearing before the Planning and Zoning Commission. Only the approval of the City
Council is required. See Response #1 above. Any public hearing of a matter not
properly presented before the Planning & Zoning Commission is potentially
prejudicial and violative of Applicant's due process and fair hearing rights.
VI. LAND USE:
E.1. The Laterals have been relocated and piped.
VII. COMPREHENSIVE PLAN POLICIES AND GOALS
TRANSPORTATION: The ITD Letters are not simply "comments". The ITD
Letters contain the following language: "access will be permitted"; "findings and
recommendations"; "ITD accepts the revised site plan"; and "ITD will allow a
signalized intersection." Reference to the entirety of the ITD letters is required, but
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the point is that the ITD Letters are not merely a submission of comments, but are, in
fact, specific recommendation by ITD as required by UDC 11-3H-3, to wit: "The
decision making body may consider and apply modifications to the standards of this
article upon specific recommendation of the Idaho transportation department."
Applicant specifically met with ITD, with the City of Meridian present at the meeting
on February 13, 2017, to obtain approval and specific recommendation from ITD.
Reference to ITD specific recommendation as only a "submittal of comments" does
not properly characterize the action of ITD.
In line with Applicant's comments above regarding the procedurally incorrect
inclusion of a Variance in a matter before the Planning and Zoning Commission,
Staff's Note regarding UDC 11-3H-4B should be disregarded.
CONCEPTUAL DEVELOPMENT PLAN:
Staff suggests the conceptual development plan is for a "strip center," which is not
accurate. Yes, the commercial uses are collected in one area of the development, but
the development includes substantial "non-strip" design. The building locations were
designed to control traffic flow and promote visibility of the businesses that are more
dependent on visibility for their custom.
Figure 3-3 in the Comp Plan is an illustration of what the Comp Plan encourages, not
what is required to receive approval. Indeed, the subject development design
integrates the multiple uses desired by the MU-C policies in a lay-out that optimizes
the multi-use offerings given the site's configuration and access.
Staff presents no definition of "strip center" and no definition is presented in the
Comp Plan itself. It is Applicant's position, respectfully, that the design of the
community center is not a "strip" center, for the reasons set forth above, and also
given the overall design of all the buildings in the shopping center and the variety of
the placement of buildings, in particular on Chinden, which closely follows the
conceptual MU-C plan example shown as Figure 3-3 in the Comp Plan.
GOALS, OBJECTIVES, & ACTION ITEMS:
Staffs Note that it has received many letters from adjacent property owners objection
to the proposed development does not also mention that Staff has also received many
letters from those who support the proposed development. The Staff Note should be
revised to more accurately reflect the tenor of letters received and/or are now of
record.
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Staffs comments that "the concept plan does not take into account any
interconnectivity with the existing development to the south" is inaccurate. The
concept plan and the West Site Plan submitted by Applicant both show
interconnectivity with the existing development to the south, in particular with respect
to walk/bike corridor to and from the site at the round-about in the vicinity of Arliss
Drive.
Staffs comments regarding a letter from ITD needs to be revised to reflect that ITD
has sent two letters, the first dated February 24, 2017, and the second dated July 28,
2017 (both of these ITD Letters are referenced in the revised Application cover letter
from CSHQA, dated September 15, 2017, as being included with the letter)(also, the
second letter appears in the online Folder named PZ-Revised Materials -Dated
Created 9/20/2017 and Modified 10/17/2017 — PZ-ITD).
The second letter specifically acknowledges that ITD has completed its re-analysis
after the departure of Costco, and that ITD continues with its recommendation of
approval subject to modifications contained in the letter, all of which are acceptable
to Applicant.
It should be specifically noted that at the time of the first letter, Brighton had been
asked in a meeting with ITD and others, including the City of Meridian, to share
access at Fox Run, and that Brighton declined. Brighton's position had not changed
by the time of the second letter, prompting this comment in the second letter: "ITD
will pursue conversation with the City of Meridian, ACHD and Brighton Corporation
to gain a public street connection with Fox Run Way to the Linder Village
Commercial Development."
The Staffs comment regarding recent communications a change on the part of
Brighton are not consistent with conversations had by Brighton with ITD, the
Applicant and others. No communication has been had with Applicant, by anyone ,
that there has been a change in the position previously taken by Brighton, that it
would not grant shared access.
Applicant, through its legal counsel, has had conversation with VRT. As
communicated to VRT, the Applicant is amenable and cooperative with respect to
providing a bus stop as may be required by VRT. Coordination with VRT will
continue.
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X. ANALYSIS
The Staff Report does not mention that the WinCo site does not abut residential
directly to the south. The area directly south of WinCo is designated as MU-C and
L/0. That WinCo does not abut residential is also critical in an analysis of hours of
operation. UDC provides that "Business hours of operation within the C-C and C-G
districts shall be limited from six o'clock (6:00) A.M. to eleven o'clock (11:00) P.M.
when the property abuts a residential use or district."(emphasis added). The WinCo
site does not abut residential, which is why it was re-located to its current proposed
location.
ITD has more than just indicated between Staff that ITD is amenable the Chinden
access point. The two ITD recommendation letters specifically approve of the
Chinden access points, subject to conditions set forth therein.
On the one hand, Staff says that the Variance is strictly within the province of the
City Council, and that the Variance request does not require action from the
Commission. On the other hand, Staff recommends denial of the proposed Variance,
even though the Commission is not required to do so. As mentioned above, the
inclusion of Staff's comments and direction regarding the Variance is potentially
prejudicial and a denial of a fair hearing and due process.
That said, it must noted that since the Staff Report is now on file, that a summary of
the Variance request is perhaps best simply stated as this: because the placement
and/or number of access points has been added to UBC 11-5B-4 (an addition that is
not within the definition of a variance set forth in Idaho Code § 67-6516), a Variance
is required, even though UBC 11-3H-3 carves out the requirement for same by
providing that "[t]he decision making body may consider and apply modifications to
the standards of this article upon the specific recommendation of the Idaho
transportation department." That internal inconsistency noted, it nonetheless remains
that all of the requirements for the findings listed in Exhibit D have been met (as set
forth in detail on page 7 above) and Staff, as it has in similar cases, can make all the
required findings.
The Variance requests an exception to UDC 11-3H-4B.2, by which the City prohibits
new approaches directly accessing a state highway (i.e. SH 20/26), which is under the
sole jurisdiction of ITD. Because the neighboring developer refused to grant access
to the site through the access he obtained for his development (one that does not itself
satisfy the placement requirements of the ordinance), Applicant has no choice but to
accept the access points approved by ITD in order to fully access Applicant's site.
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Indeed, without the Variance, the eastern portion of the site, which is a separate legal
parcel, has no access to a public right of way.
Thank you for your attention to this letter.
Sincerely,
HAWLEY TR• ENNIS & HAWLEY LLP
cc: client
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