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Andrea Carroll / "Protect Meridian" 11.17CARRO LL LAW PLLC MEMORANDUM IN OPPOSITION TO LINDER VILLAGE TO: City of Meridian, Mayor and City Council FROM: Andrea D. Carroll, Carroll Law PLLC RE: Linder Village (H-2017-0088) (As Revised on November 13, 2017) DATE: November 17, 2017 This Memorandum is submitted on behalf of my clients, a group of citizens who have informally organized under the name "Protect Meridian." We ask the Meridian City Council to deny the applicant's permits based on the analysis outlined below. I. Procedural History, Revisions, and Continuances The City of Meridian should deny the application for Linder Village and should deny any new requests by the applicant for a further continuance or remand to the Planning and Zoning Commission. Throughout the past six months, the applicant has ignored community feedback, which has significantly delayed the City's hearing process. The initial pre -application meeting with City of Meridian staff took place on April 12, 2017. The applicant thereafter held a neighborhood meeting where it received constructive feedback on the location of the commercial buildings and the size of the proposed development. Nevertheless, the applicant disregarded the community's feedback and desire to collaborate. On June 5, 2017, the applicant submitted a large-scale commercial development to the City of Meridian, featuring WinCo and Costco as anchor tenants next to existing residential development. The original Planning and Zoning Commission (P&Z) hearing was set for August 3, 2017, but due to an error in the notice, the hearing was continued to September 7, 2017. On August 8, 2017, Costco announced that it had selected a different location for a Meridian store. The applicant began redesigning the site, but it did not ask for a continuance until August 31, 2017. As a result of the applicant's delayed request, the hearing remained on the agenda until September 7, 2017. In that hearing, the applicant represented to the City that it was in the process of redesigning the site plan to respond to community feedback. On September 20, 2017, the applicant submitted anew site plan, but the plan itself was prepared and dated September 5, 2017 — two days before the P&Z was asked to consider a continuance. The revised site plan, which did not address any community concerns, was withheld from both the City of Meridian and the public when the City considered the request to continue on September 7, 2017. On October 19, 2017, the P&Z held a public hearing on the revised site plan and made the unanimous decision to recommend denial. A new site plan was discussed with staff on November 1, 2017, after which the applicant began to meet and present its plan to neighbors individually and in small groups. However, the site plan was not submitted to the City of Meridian and was inaccessible to the public until November 13, 2017, just one week before the present City Council meeting. No notable changes were made to the site ANDREA D. CARROLL f?O.BOX 2006 • BOISE IDAHO 83701 +ADC@IDAHOPROPERTYLAW.COM (208) 949-9670 plan during this two-week period. Rather, the applicant used this time to mimic cooperation with community members while maintaining minimal and inflexible concessions. For the second time, the applicant withheld its revised plans from the general public until a week before the hearing and did so without consideration to the prejudice caused to interested parties who have participated in the permit approval process for six months. To the extent the City Council considers another continuance based on the newly revised site plan, please consider first how much delay, wasted effort and prejudice has already been caused by the applicant. The minimal adjustments the applicant has just recently submitted are not in response to community feedback, which was provided four months prior to the revisions. Rather, the revisions are motivated solely by the unanimous recommendation of denial from the P&Z. Even now, the revisions fall short of the expectations in City Code and the Comprehensive Plan. 11. Meridian City Code and LLUPA Require a Denial A. WinCo's 24 Hour Retail Use Requires a Conditional Use Permit WinCo is the primary commercial user for the Linder Village site. WinCo operates its stores for 24 hours, seven days a week, and the applicant has refused to discuss either an alteration to that business model or the relocation of the WinCo building to the northern portion of the property, away from residential uses. However, regardless of WinCo's placement, a Conditional Use Permit (CUP) is required to approve extended hours under the City's ordinance, as explained below. WinCo uses the overnight hours to unload its grocery freight using the back of the store as a loading center while the front of the store remains open for business to the public. The proposed development will produce intense and constant noise throughout the hours when most Meridian residents are sleeping. The noise, trash, odors and commercial vehicle exhaust that will be generated by this development will decrease residential property values. WinCo's delivery schedule begins with evening deliveries that continue throughout the night and early morning. Every night there are an average of 10-15 trucks delivering at each WinCo store.' Noise, pollution and odor of this degree is not a frivolous concern for nearby residents — it's a critical health and safety issue. Adults who forego sleep are a safety risk when driving. Children who are sleep -deprived do not arrive at school ready to learn. The degree of noise interference generated by a busy retail center with all-night deliveries is a burden too great to ask nearby residents to shoulder. ' There are three to six trucks delivering each night from the WinCo distribution center. Each of these trucks carries a different category of food: a dry grocery truck, a refrigerated truck for yogurt, deli meats, cheeses and butter, and frozen food. Additional trucks deliver large orders of single products like Shasta throughout the night. Every night there are also noisy milk deliveries with metal dairy racks that clang loudly each time they are loaded and unloaded. Forklifts beep continuously as each truck is unloaded. Cardboard compactors begin operation in the early morning after the overnight freight crew has stocked the large deliveries from the distribution center. In the early morning, there are more trucks. At 4:00 AM, a receiving clerk coordinates the arrival of vendors from Coca Cola, 7 -up, Pepsi, Budweiser, Craig Stein Beverage, Hayden Beverage Company, Oroweat, Sara Lee, Papa Pita, Frito Lay, etc. MEMORANDUM IN OPPOSITION TO LINDER VILLAGE (H-2017-0088) Page 2 Pursuant to Meridian City Code, the applicant is required to obtain a CUP to operate a 24- hour store because "the property abuts a residential use": Hours Of Operation: Business hours of operation within the L -O and C -N districts shall be limited from six o'clock (6.•00) A.M. to ten o'clock (10:00) P.M 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. Extended hours of operation in the C -C and C G districts may be requested through a conditional use permit These restrictions apply to all business operations occurring outside an enclosed structure, including, but not limited to, customer or client visits, trash compacting, and deliveries. These restrictions do not apply to business operations occurring within an enclosed structure, including, but not limited to, cleaning, bookkeeping, and after hours work by a limited number of employees.2 The applicant asserts that this provision does not apply, focusing on the distance between the WinCo building site and existing residential use. A reviewing court will use the canons of statutory construction to interpret a local ordinance.3 If the language of an ordinance is unambiguous, the ordinance will be given its plain meaning. The ordinance itself is not limited to a specific building on the property and explicitly states that it applies to all uses, including those "outside an enclosed structure." Additionally, Meridian City Code provides the following definitions that eliminate any ambiguity as to whether the a CUP is required for the proposed development: ABUT or ABUTTING: Having a common border with the subject properly. PROPERTY. A "lot" or `parcel" as defined herein. PARCEL: A tract of unplatted land or contiguous unplatted land held in single ownership, considered a unit for purposes of'development.4 When interpreting an ordinance, a court will construe all sections of the ordinance together such that no portion of the ordinance is rendered superfluous.5 When a zoning board has applied a reasonable interpretation of an ordinance, that interpretation is presumed valid. It is unreasonable and contrary to the plain language of the ordinance to interpret the "Hours of Operation" provision as if it only applies when a proposed commercial building is directly adjacent to residential use. Additionally, the explicit definitions contained in the zoning ordinance cannot be ignored — the provisions must be construed together. Using z M.C.C. § 11 -2B -3.A.4 (emphasis added). 3 Evans v. Teton County, 139 Idaho, 71, 77, 73 P.3d 84, 90 (2003). a M.C.C. § I I -IA -1. s Id. 6 Marcia T. Turner, L.L. C v. City of Twin Falls, 144 Idaho 203, 209, 159 P.3d 840 846 (2007) MEMORANDUM IN OPPOSITION TO LINDER VILLAGE (H-2017-0088) Page 3 these definitions., if the parcel or tract has a common border with a residential use, then a CUP is required. If the City of Meridian were to authorize these extended hours without following its own procedures, the City would act outside the statutory authority provided under the Local Land Use Planning Act (LLUPA). The applicant's failure to apply for a CUP is not just a notice and procedural oversight. A CUP would require the following substantive findings: 1. That the site is large enough to accommodate the proposed use and meet all the dimensional and development regulations in the district in which the use is located. 2. That the proposed use will be harmonious with the Meridian comprehensive plan and in accord with the requirements of this title. 3. That the design, construction, operation and maintenance will be compatible with other uses in the general neighborhood and with the existing or intended character of the general vicinity and that such use will not adversely change the essential character of the same area. 4. That the proposed use, if it complies with all conditions of the approval imposed, will not adversely affect other property in the vicinity. 5. That the proposed use will be served adequately by essential public facilities and services such as highways, streets, schools, parks, police and fire protection, drainage structures, refuse disposal, water, and sewer. 6. That the proposed use will not create excessive additional costs for public facilities and services and will not be detrimental to the economic welfare of the community. 7. That the proposed use will not involve activities or processes, materials, equipment and conditions of operation that will be detrimental to any persons, property or the general we fare by reason of excessive production of traffic, noise, smoke, fumes, glare or odors. The required findings 1, 3, 4 and 7 are distinctly different than the findings required for the permits currently before the City Council. Notably, finding 7 specifically requires an evaluation of excessive traffic, noise, smoke, fumes, glare or odors generated by a development. Finding 7 also illustrates why it is logical that building proximity should not determine whether a CUP is required. Traffic, noise, smoke, fumes, glare and odors, are capable of adversely affecting residents of a considerable distance depending on the specific proposed use. Additionally, requiring a CUP for this development is logical because it should be the applicant's responsibility to demonstrate to the City that the development is appropriate with existing uses. The applicant has yet to support its claims that WinCo's loading docks will not interfere with neighboring residential uses. If these claims are accurate, the applicant should be able to demonstrate those claims through noise and environmental studies using its current stores. M.C.C. § 11 -5B -6.E (emphasis added). MEMORANDUM IN OPPOSITION TO LINDER VILLAGE {H-2017-0088} Page 4 The applicant's proposed hours of operation cannot be approved without a CUP. To approve extended hours through any procedure other than a CUP is both a violation of Meridian City Code and LLUPA.B As proposed, an approval of Linder Village would grant the applicant a special privilege above and beyond the allowed uses for C -C property without following the procedure required by ordinance and Idaho Code. B. The Variance Must Be Denied Because the Applicant Cannot Create its Own Hardship There is no access -related hardship on this parcel. This site is a fantastic opportunity for a modestly -sized and integrated mixed-use development. Yet for Linder Village, the applicant asks the City to grant not one, but two direct access points off of Chinden. Direct access to a state highway is prohibited under Meridian City Code.9 To grant a variance from this requirement, the following required findings must be made: 1. The variance shall not grant a right or special privilege that is not otherwise allowed in the district. 2. The variance relieves an undue hardship because of characteristics of the site. 3. The variance shall not be detrimental to the public health, safety, and welfare. to Additional stop points are a public safety issue causing increased accidents, fatalities, and congestion. There is clear public policy behind the ordinance. The applicant has not shown any particularly unusual characteristic for the site that prevents a development from taking access from other routes. The only reason why direct access is necessary is because of anticipated traffic due to the use of the site. An applicant cannot create its own hardship. The applicant has proposed a development out of proportion with what could be developed on this site with other commercial users. C. Linder Village Will Be Detrimental to the Public Health, Safety and General Welfare. In order to approve the variance, the preliminary plat, or the C -C zone, Meridian City Code requires a finding that "[t]he development will not be detrimental to the public health, safety or general welfare."" s The proposed conditional use cannot be granted through a development agreement, as has been suggested. The City would act outside its statutory authority pursuant to LLUPA. See Idaho Code § 67-651 IA. A city may use a development agreement when zoning a property to require additional commitments from an applicant with regard to the use and development of a property, but LLUPA does not provide any authority to use a development agreement to grant additional uses or special privileges beyond what is ordinarily allowed in the assigned zone. 9 M.C.C. § 11-3H-4. to M.C.C. § 11-5134.E (emphasis added). " M.C.G. §§ 11-513-3.E, 11-613-6. See M.C.C. § 11-513-4.E (variance findings). MEMORANDUM IN OPPOSITION TO LINDER VILLAGE (H-2017-0088) Page 5 While annexation itself is not opposed, the proposed zoning and site plan are materially detrimental to the public's health, safety and welfare. The Chinden corridor is already heavily congested. The ITD corridor study of US -24/26 details a growing problem with traffic congestion, accidents and increased fatalities. Increased traffic and congestion on Chinden present a serious safety concern that cannot be adequately mitigated by ITD at this time because anticipated improvements to that corridor are unfunded. The applicant has represented that "ITD has approved access," but ITD approval is not equivalent to the findings required for approval by Meridian City Code. Furthermore, the information the applicant provided ITD and ACHD is incomplete. ACRD and ITD will only evaluate the impact of traffic for which a site plan is proposed. In this case, only the commercial portion of the site plan has been proposed for development at this time, so ACHD and ITD will conduct an evaluation of traffic to provide access points for the first phase of the development, but ACHD and ITD have not and will not "approve" the full development site plan as an appropriate use in this location based on the anticipated increase in traffic. That land use decision is the exclusive purview of the City of Meridian, and the applicant has not provided the City of Meridian any reliable data to support its contention that the development can be added without exacerbating an existing safety issue. Furthermore, the applicant's site plan has changed considerably since it was originally submitted to ITD and ACRD, so it is unclear whether any of the prior approved access points would remain appropriate without Costco as a co-anchor. While the City may use the transportation findings and access approvals by other agencies to make a land use decision, the City must make its own findings with respect to whether the proposed use and site plan are appropriate. The City should examine closely whether either ITD or ACHD has evaluated the impact of the full site plan before assuming that the access approval process will be able to address these traffic and safety issues. D. The Site Plan Fails to Reflect the Mixed Use Design Principles Set Forth in the Comprehensive Plan. At the P&Z hearing, the applicant asserted that the City of Meridian could not use the comprehensive plan as a basis for denial. Meridian City Code requires the City Council to find that the development is in conformance with the comprehensive plan in order to grant both the requested C -C zoning and the preliminary plat. 12 The applicant's review of Idaho cases attempted to devalue the City's design policies, but the applicant omitted one very important distinction: the applicant's property is currently without an assigned zone and it therefore has no protected entitlement to commercial development on this property. Idaho courts have provided guidance on the proper weight and purpose that a local zoning board should give its comprehensive plan when making land use decisions. Certainly, a comprehensive plan alone cannot serve as the sole basis to deny a land use application, particularly of land zoned appropriately for the intended use. The Idaho Supreme Court explained the role of the comprehensive plan in Urrutia v. Blaine County: iz M.C.C. §§ 11-513-3.E, 11-6B-6. MEMORANDUM IN OPPOSITION TO LINDER VILLAGE (H-2017-0088) Page 6 In determining whether the land "conforms to the comprehensive plan" for the purposes of a subdivision application, the Board is simply required to look at all facets of the comprehensive plan and assure that the land fits within all of the various considerations set forth in the plan. It is to be expected that the land to be subdivided may not agree with all provisions in the comprehensive plan, but a more specific analysis, resulting in denial of a subdivision application based solely on non-compliance with the comprehensive plan elevates the plan to the level of legally controlling zoning law. Such a result affords the Board unbounded discretion in examining a subdivision application and allows the Board to effectively re- zone land based on the general language in the comprehensive plan. As indicated above, the comprehensive plan is intended merely as a guideline whose primary use is in guiding zoning decisions. 13 However, the Urrutia property was already annexed and appropriately zoned for a residential subdivision at the time Blaine County considered the application. In contrast, Linder Village is not entitled under Meridian's zoning code to develop the property as proposed until the City of Meridian annexes the property and assigns zoning to the property. At the point of annexation, a City may assign any zone it finds appropriate based on its own ordinances and policies, even if the assigned zoning would conflict with any prior use entitlements through the county's prior zoning designation. 14 Bone v. City of Lewiston was previously cited by the applicant to support its position on the comprehensive plan, but that case only further illustrates the distinction drawn by courts between a comprehensive plan's role in evaluating a zoning decision as opposed to other land use permits." In Done, the City of Lewiston denied the applicant's zoning application because the proposed commercial use "would not be compatible with the established low-density residential uses of the various properties bordering Mr. Bone's land" and because there was sufficient property elsewhere in the City that was properly zoned for commercial use. 16 The applicant argued that he was entitled to commercial zoning because it was generally consistent with the comprehensive plan. The Idaho Supreme Court rejected the applicant's argument, reversing the decision of the district court. Id. at 850-51, 693 P.2d at 1052-53. While certainly a comprehensive plan does not carry equivalent weight to an ordinance, the applicant has no entitlement under any Meridian ordinance because it remains to be annexed. Assigning a zone or considering a rezone is the primary use for a city's comprehensive plan. Prior to annexation and zoning is the moment where the City of Meridian's Comprehensive Plan can carry the most possible weight. The City of Meridian should consider the planning policies and description of mixed-use design very carefully. The Linder Village site plan ignores the planning principles intended to be used in "Mixed Use" developments, as was detailed in the very thorough P&Z staff report. The purpose of the MU -C designation "is to allocate areas where community -serving uses and dwellings 13 Urrutia v. Blaine County, 134 Idaho 353, 358-59, 2 P.3d 738, 743-44 (2000). 14 Ben Lomond, Inc. v. City ofldaho Falls, 92 Idaho 595, 448 P.2d 209 (1968). 15 Bone v. City of Lewiston, 107 Idaho 844, 693 P.2d 1046 (1984). 16 Id at 846, 693 P.2d at 1048. MEMORANDUM IN OPPOSITION TO LINDER VILLAGE (H-2017-0088) Page 7 are seamlessly integrated into the urban fabric. The intent is to integrate a variety of uses, including residential, and to avoid mainly single -use and strip commercial type buildings."17 Linder Village is not "mixed use" as described in the Comprehensive Plan. Linder Village is a commercial development trying to leverage "future" residential development that is not at all integrated with commercial uses. The applicant has repeatedly demonstrated its apathy towards developing the residential portion of the site. Each application it has presented includes little to no detail about the number of units or design of that portion of the sight. The applicant has been forthright that it intends to develop the commercial portion of the site plan and let another developer address the design of the residential portion of the development. The future residents who will live in these units certainly deserve a more thoughtful approach to their community than has been demonstrated by the applicant. Approving half a mixed-use site plan is not mixed-use. Linder Village is a commercial site plan that will only exacerbates the development challenges that the City of Meridian will confront in the future. III. Salem WinCo: an Example of Poor Land Use Planning If a picture is worth a thousand words, a video is worth a million. We contacted Kim Cardona of Salem, Oregon to describe the conflict between residential use and an adjacent WinCo loading dock. Ms. Cardona has been exposed to the same overnight delivery disruptions that Meridian residents would experience if Linder Village were approved. Ms. Cardona submitted testimony and provided data on decreased property values in her area correlated to WinCo's proximity. Ms. Cardona documents the disruption to her and her grandson's ability to sleep on video. Protect Meridian submitted a three minute video summary of Ms. Cardona's footage to support our position and provided a raw video file to city staff at the meeting on October 19, 2017. Councilmembers and other interested parties may view this video using either Google Chrome or Microsoft Internet Explorer: hitps://www.youtube.com/watch?v--ImDTLiOZEmQ (accessible on YouTube as "WinCo loading dock in Salem, OR"). IV. Conclusion The City of Meridian must deny the Linder Village applications. The applicant has not applied for the required CLIP and the City does not hold the authority to approve a conditional use for extended business hours through any other means. Further, a high- volume commercial retail development is an incompatible neighbor for the established residential neighborhoods in the surrounding area. The placement of this development along Chinden will make an existing public safety issue much worse by increasing traffic and congestion. Please deny the Linder Village application and protect Meridian residents from this commercial development that is too big and too noisy for the proposed location. " City of Meridian Comprehensive Plan, p. 27. MEMORANDUM IN OPPOSITION TO LINDER VILLAGE (H-2017-0088) Page 8