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03-30 Coalition against Lost Rapids1 Christopher Johnson From:C.Jay Coles Sent:Friday, March 30, 2018 2:13 PM To:Christopher Johnson Subject:FW: Memorandum in Opposition to Lost Rapids (H-2018-0004) Attachments:CC Memo 04032018.pdf From: Andrea Carroll [ mailto:adc@idahopropertylaw.com ] Sent: Friday, March 30, 2018 2:13 PM To: mayortammy < mayortammy@meridiancity.org >; citycouncil < citycouncil@meridiancity.org >; C.Jay Coles <cjcoles@meridiancity.org >; Sonya Allen < sallen@meridiancity.org >; Bill Nary < bnary@meridiancity.org > Subject: Memorandum in Opposition to Lost Rapids (H-2018-0004) Mayor de Weerd and City Council Members, I have attached for your review a memorandum in opposition to the Lost Rapids (Costco) development that is set for hearing on April 3, 2018. I look forward to the opportunity to speak with you further about the applications at the hearing. Thank you, Andrea Carroll Attorney at Law Carroll Law, PLLC (208) 949-9670 idahopropertylaw.com Confidentiality Notice: The information contained in this email is confidential and may also contain privileged attorney- client information or work product exempt from disclosure under applicable law. The information in this message is intended only for the use of the individual or entity listed as a recipient. If you have received this message by mistake, please report the error immediately by replying to this message or telephone. Do not review, disclose, copy, or distribute this message. Any use, dissemination, distribution or copying of this communication to anyone other than the sender or the intended recipient is strictly prohibited. ANDREA D. CARROLL CARROLL LAW PLLC MEMORANDUM IN OPPOSITION TO LOST RAPIDS TO: City of Meridian, Mayor and City Council Members FROM: Andrea D. Carroll DATE: March 28, 2018 RE: Lost Rapids (H-2018-0004) HEARING: City Council, April 3, 2018 This Memorandum is submitted on behalf of my clients, a coalition of Bainbridge and SpurWing residents who have informally organized as the "Coalition Against Lost Rapids." My clients are providing written and verbal testimony individually, as well. I was retained to articulate their prejudiced due process and property rights and to advocate on their behalf for a fair decision process. L Flawed Transportation Funding Should Not Force a Community Into Poor Land Use Decisions. Nearly every local government agency is struggling in some way to meet the transportation needs of regional growth. The City of Boise's Transportation Action Plan (TAP), the COMPASS Communities in Motion (CIM) plan, the ValleyConnect plan by Valley Regional Transit, and the City of Meridian's Comprehensive Plan each address these difficult transportation planning issues. A lot of detailed analysis and thought has been built into smart -growth design, planning, and policy objectives. Yet with all the effort to create long-range planning policies with complimentary infrastructure, a deficit of overall. transportation funding has put pressure on local land use and transportation entities to come up with ways to approve growth even without these necessary investments. Without adequate funding, each entity's intended role in the process has become blurred. The City of Meridian is intimately familiar with the congestion and safety issues along the Chinden corridor. Over the years, development has boomed while transportation infrastructure has lagged behind. Developers have done what was required of them: they paid impact fees under the Idaho Development Impact Fee Act (IDIFA). However, impact fees in combination with other revenue streams have inadequately met the community's needs to fund roadways and other modes of transportation. To the extent that land use bodies like the City of Meridian have relied on the assumption that impact fees are adequately calculated to absorb the traffic impact from development, that reasoning is flawed. Placing a high -impact development along already overburdened infrastructure is very poor land use planning. The Planning and Zoning Commission recommended approval based in large part on Costco's expressed willingness to assist widening Chinden by entering into a STAR agreement. However, it is not the role of the City of Meridian to grant a land use permit to secure transportation funding for an existing infrastructure need. If the development is a good fit, consistent with the permit decision criteria, then the transportation funding might be an added benefit. However, the Planning and Zoning P.0.80X 2066. 6015E IDAHO 83701 • ADC@IDAHOPROPERTYLAW.COM (208)949-9670 Commission's deliberations and findings exhibited a disregard for the proper criteria of their decision. The City of Meridian is charged with following the Local Land Use Planning Act (LLUPA) as well as its own ordinances to effect good land use decisions. Blurring the roles between ITD, ACHD, the legislature, and the City of Meridian is detrimental to the community and negates the important role the City of Meridian is supposed to play. The result of an approval will be a short-term band-aid to assist transportation funding yet will burden the community long-term with a poorly located regional destination At this point, there is little basis in the record to even begin an assessment of the anticipated traffic impact of the Lost Rapids development and what the true impact to infrastructure will be. The ACHD recommendation used the same flawed assumptions regarding impact fees that have led to the current issues along Chinden. COMPASS and ITD have expressed their concerns over the impact of this development on the Chinden corridor, and so have the City of Meridian's own planning staff. COMPASS has expressly recommended that the developer should approach Valley Regional Transit to assist in public transportation improvements. If public transportation is a priority for the City of Meridian, an approved permit without exploring this idea further seems like a lost opportunity. Examining the record as a whole, there is not a sufficient basis to find that the developer's promised mitigation, STAR agreement, and impact fees would not exacerbate an existing public safety issue. The Planning and Zoning Commission did not evaluate the permits based on the criteria outlined in Meridian City Code. The developer's willingness to enter into a STAR agreement is not a valid reason to disregard both ordinance and Idaho law regarding such permit decisions. IL The City of Meridian Should Not Approve Any Major Entitlements Along the Chinden Corridor Until a Better Solution is Reached with Developers Voluntarily or Through Legislative Reform. Absent a solution to the transportation funding issues, any new development along Chinden should be limited to what the current infrastructure and funding can accommodate. A moderately-sized development could be approved with a more flexible applicant. In this case, the applicant has already selected a very large commercial anchor that will be a regional destination. Even with the proposed infrastructure improvements, that is not a realistic or responsible vision for this site. Annexation is the moment in time where the comprehensive plan has its most weighted impact in a development decision. Prior to annexation, a property owner has little reasonable expectation of development from a municipality. Through 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.' Bone v. City of Lewiston illustrates the distinction drawn by courts between a comprehensive plan's role in evaluating a zoning decision as opposed to other land use permits.2 in Bone, the City of Lewiston denied the applicant's zoning permit ' Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209 (1968). Bone v. City ofLewiston, 107Idaho 844, 693 P.2d 1046 (1984). MEMORANDUM IN OPPOSITION TO LOST RAPIDS (H-2018-0004) Page 2 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.3 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.4 The City of Meridian is not required to approve the highest possible use for the applicant's property. Because the subject property has yet to be annexed, the property carries no entitlement to a specific type of development under Meridian City Code. The City of Meridian is charged with making responsible land use decisions consistent with the comprehensive plan, local ordinances and Idaho law. In this case, the responsible choice is to focus on whether the development represents a good decision based on the permit criteria. Each time the City of Meridian grants an entitlement along the Chinden corridor, it is potentially exacerbating the congestion and safety issues that burden current property owners thatmust use that corridor. Let the legislature, who is charged with securing transportation funding, play its role. The City of Meridian should not set its land use responsibilities aside in order to fill a funding deficit that it has not been charged to restore. III. Meridian City Code Supports Denial of All Requested Permits. a. Variance Pursuant to both Idaho Code and Meridian City Code, there must be an undue hardship to grant a variance. There is no access -related hardship on this parcel. This site is a prime opportunity for a modestly -sized and integrated mixed-use development that would complement surrounding neighborhoods. Direct access to a state highway is prohibited under Meridian City Code.' To grant a variance from this ordinance, 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. G Additional stop points are a public safety issue causing increased accidents, fatalities, and congestion. The ordinance protects Chinden as a corridor. There is clear public policy behind the ordinance. However, ITD does not have the authority to deny the proposed land use to prevent exacerbating this safety issue -- only the City of Meridian can do that. The applicant has not shown any unusual characteristic for the site that prevents access from 3 Id. at 846, 693 P.2d at 1048. 4 Id. at 850-51, 693 P.2d at 1052-53. s M.C.C. § 11-3H-4. 6 M.C.C. § 11-2-41 (emphasis added). MEMORANDUM 1N OPPOSITION TO LOST RAPIDS (H-2018-0004) Page 3 other routes. The only reason to approve direct access is to accommodate the traffic anticipated by the proposed use of the site, but an applicant cannot create its own hardship. The Planning and Zoning Commission did not address the requested variance and made no recommendation as to approval or denial. The City Council must examine the record to determine whether the variance criteria has been met. Variance findings are not only a matter of compliance with Meridian City Code, they are required by LLUPA, as well. Yet, none of these required findings are supported by the record. No matter how desirable a STAR agreement for Chinden might be to the City of Meridian, that is not a basis to grant the applicant a special privilege through a variance. There has not been a clearly expressed undue hardship on the site; not every site will be a good location for every use and that itself does not qualify as an undue hardship. The variance itself must not be detrimental to public safety, which is exactly what every corridor study regarding direct access has stated from ITD. Direct access to a state highway increases collisions, particularly injury -related and fatalities. That is the purpose of the ordinance restriction. There may be exceptions where direct access will not be detrimental to safety, but nothing in the record supports that conclusion here. Regardless of impact fees, a STAR agreement, widening Chinden, etc., the direct access is detrimental. If the City of Meridian and ITD do not want to continue restricted access, then the proper response would be to change the ordinance and policies. As it stands, the ordinance is valid, has a public safety purpose, and the criteria for a variance is unsatisfied. b. Comprehensive Plan Amendment The area for the proposed development is currently designated under the City of Meridian's Future Land Use Map (FLUM) as Mixed -Use Community (MU -C) and Medium -Density Residential. The applicant has sought an amendment to the comprehensive plan's FLUM. Only by requesting this change to Meridian's comprehensive plan is the applicant able to request zoning that allows the proposed development. The required findings to amend the comprehensive plan are: 1. The proposed amendment is consistent with the other elements of the comprehensive plan. Z. The proposed amendment provides an improved guide to future growth and development of the city. 3. The proposed amendment is internally consistent with the goals objectives and policies of the comprehensive plan. 4. The proposed amendment is consistent with this unified development code. S. The amendment will be compatible with existing and planned surrounding land uses. b. The proposed amendment will not burden existing and planned service capabilities. ' Idaho Code § 67-6516. MEMORANDUM IN OPPOSITION TO LOST RAPIDS (H-2018-0004) Page 4 7. The proposed map amendment (as applicable) provides a logical juxtaposition of uses that allows sufficient area to mitigate any anticipated impact associated with the development of the area, 8. The proposed amendment is in the hest interest of the City of Meridian.8 The facts do not support the findings required under city code to amend the comprehensive plan. The proposed development is not internally consistent with the use and design guidelines contained in the comprehensive plan. Idaho courts have provided guidance on the proper weight 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: 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.9 However, the Urrutia property was already annexed and appropriately zoned for a residential subdivision at the time Blaine County considered the application. In contrast, Lost Rapids is not entitled under Meridian's zoning code to develop the property as proposed until the City of Meridian annexes the property and assigns the initial zoning. 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.'0 Certainly, a comprehensive plan does not carry equivalent weight to an ordinance, but the applicant has no current land use entitlements under any Meridian ordinance because it is yet to be annexed. For that reason, this moment in time is when the City of Meridian must give the Comprehensive Plan its fullest weight in evaluation of the proposed development. This moment in time is also the most legally defensible time to deny a permit. Assigning a M.C.C. § 11-513-7.D (emphasis added). 9 Urrutia v. Blaine County, 134 Idaho 353, 358-59, 2 Pad 738, 743-44 (2000). 10 Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 448 P.2d 209 (1968). MEMORANDUM IN OPPOSITION TO LOST RAPIDS (H-2018-0004) Page 5 a zone or considering a rezone is the primary use for a city's comprehensive plan and the City of Meridian should not dismiss the policies contained within it simply because they are not contained in an ordinance. The Chinden corridor is a growing problem with traffic congestion, accidents, and increased fatalities. The approval of a large-scale commercial development without more forward -thinking transportation investments will only burden the transportation system further. A large-scale retail warehouse should not be placed in an area already struggling to keep up with prior development. The City of Meridian may desire Costco, and Costco may desire an expansion in this area. That mutual desire does not mean that the most profitable location for Costco is the best land use placement for a store that will generate so much traffic. c. Annexation & Zoning The applicant has proposed annexation with C -G zoning. The required findings for annexation and zoning designations are: 1. The map amendment complies with the applicable provisions of the comprehensive plan. 2. The map amendment complies with the regulations outlined for the proposed district, specifically the purpose statement. 3. The map amendment shall not be materially detrimental to the public health, safety, and welfare. 4. The map amendment shall not result in an adverse impact upon the delivery of services by any political subdivision providing public services within the city including, but not limited to, school districts. 5. The annexation (as applicable) is in the best interest of the city. 11 While annexation itself is not opposed, the proposed zoning and site plan are materially detrimental to the public's health, safety, and welfare. Chinden is a continuing regional safety issue. It's a problematic corridor with increased traffic congestion, accidents, and fatalities. It is not in the best interest of the City to place a large retail development in an area that is already experiencing safety issues with the current level of traffic. d. Preliminary Plat The required findings for the approval of a preliminary plat are: 1. The plat is in conformance with the comprehensive plan and is consistent with this unified development code. 2. Public services are available or can be made available and are adequate to accommodate the proposed development. 3. The plat is in conformance with scheduled public improvements in accord with the city's capital improvement program. " M.C.C. 11 -5B -3.E (emphasis added). MEMORANDUM IN OPPOSITION TO LOST RAPIDS (EI -2018-0004) Page 6 4. There is public financial capability of supporting services for the proposed development. 5. The development will not be detrimental to the public health, safety or general welfare.. 6. The development preserves significant natural, scenic or historic features. 12 The Lost Rapids plan only exacerbates the sprawl, transportation and development issues that the City of Meridian will have to confront in the future. There is not enough in the record to support findings that the traffic impact will be absorbed by the proposed infrastructure improvements. Incorporating the analysis from the similarly -worded decision criteria of other permits discussed in more detail, the City of Meridian should deny the preliminary plat. IV. Draft Development Agreements Not Provided for Comment As a final concern, my clients note that while some of the proposed terms for the Development Agreement (DA) were included in the Planning staff report, there is notable concern that there is no draft development agreement for the public's review. Even if the draft development agreement were changed based on deliberations, the public would at a minimum have an opportunity to comment or express concern over the provisions of the agreement during the public hearing process. Since the agreement is a condition of approval, the details of those provisions are highly relevant to the public hearing process. The City of Meridian has not provided any draft DA prior to the commencement of the public hearing process. To the extent that there is any term included in the final agreement that was not proposed in the staff report, my clients express that they are prejudiced and inhibited in their right to participate fairly in the administrative approval process. These rights to procedural due process are protected under the 14th Amendment of the Constitution. If the City moves forward with an approval, we would ask that the DA terms be conservative and consistent with the proposed terms that have been disclosed to the public prior to this hearing. V. Conclusion The City of Meridian should deny the requested permits. More development is not a solution to resolve inadequate transportation funding of the past. The City of Meridian's role in the permit approval process is to make good land use decisions on behalf of the community. It is not the City of Meridian's role to set aside that responsibility to secure a solution to a transportation funding deficit. There are other entities that have the specific power to address these issues. If the City of Meridian is willing to set aside its land use responsibilities for a short-term funding band-aid, that decision only continues to preserve the status quo. The longer the community waits for a real solution to transportation funding, the more growth will outpace the investments in infrastructure that are necessary. `' M.C.C. 11-6B-6 (emphasis added). MEMORANDUM IN OPPOSITION TO LOST RAPIDS (H-2018-0004) Page 7 1 Christopher Johnson From:April Guinsler Sent:Monday, April 02, 2018 1:37 PM To:C.Jay Coles; Charlene Way; Chris Johnson Subject:FW: Public Hearing for Lost Rapids (H-2018-0004) Attachments:03-30 Coalition against Lost Rapids.pdf -----Original Message----- From: Roger Lee [ mailto:rogermlee@gmail.com ] Sent: Saturday, March 31, 2018 3:50 PM To: mayortammy; citycouncil Subject: Public Hearing for Lost Rapids (H-2018-0004) Please make this part of the public record for the subject hearing. I have attached the "Memorandum in Opposition to the Lost Rapids (Costco) development" because I'm writing to voice my opposition to the project. The Memorandum clearly states the issues I and many of my neighbors have with the project. I want to urge you, my elected representatives, to value due process in the zoning and approval procedures. Many new Meridian residents trusted in the Comprehensive plan for this area when we bought our homes. The violation of that trust that would be represented by approval of this plan is well described in the 03-29 Susan Fillman letter as well. I expect that I'm one of the 200 residents she refers to who never expected that such a large development could ever be approved for the proposed site since it violates most of the land use planning decisions expressed in the Comprehensive Plan. Please support the Comprehensive Plan and deny the zoning changes the filing asks for. And reinforce our trust in the city processes. I live in Spurwing Greens at 6579 N Levenham Ave. Roger Lee