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
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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