CC - Applicant_Response_to_Request_for_Reconsideration
601 W. Bannock Street
PO Box 2720
Boise, ID 83701
Telephone: 208-388-1200
Facsimile: 208-388-1300
www.givenspursley.com
Gary G. Allen
Christopher J. Beeson
Jason J. Blakley
Clint R. Bolinder
Jeff W. Bower
Preston N. Carter
Jeremy C. Chou
William C. Cole
Michael C. Creamer
Amber N. Dina
Bradley J. Dixon
Thomas E. Dvorak
Jeffrey C. Fereday
Martin C. Hendrickson
Brian J. Holleran
Kersti H. Kennedy
Neal A. Koskella
Debora K. Kristensen
Michael P. Lawrence
Franklin G. Lee
David R. Lombardi
Kimberly D. Maloney
Kenneth R. McClure
Kelly Greene McConnell
Alex P. McLaughlin
Melodie A. McQuade
Christopher H. Meyer
L. Edward Miller
Patrick J. Miller
Judson B. Montgomery
Emily G. Mueller
Deborah E. Nelson
W. Hugh O’Riordan, LL.M.
Randall A. Peterman
Jack W. Relf
Michael O. Roe
Jamie Caplan Smith
P. Mark Thompson
Jeffrey A. Warr
Robert B. White
Donald E. Knickrehm (retired)
Kenneth L. Pursley (1940-2015)
James A. McClure (1924-2011)
Raymond D. Givens (1917-2008)
Deborah E. Nelson
208-388-1215
den@givenspursley.com
May 15, 2018
Via email to City Clerk
City of Meridian
Mayor and City Council Members
33 East Broadway Avenue
Suite 300
Meridian, ID 83642
RE: Lost Rapids (H-2018-0004)
Applicant Response to Request for Reconsideration
Dear Mayor and Council Members:
Applicant provides this response to the Request for Reconsideration submitted May 8, 2018
by Andrea Carroll on behalf of a group of residents organized as the Coalition Against Lost Rapids
(“Coalition”).
I. Access Approval/Variance Findings
The access points requested by Applicant and the legal arguments for the Council to
approve the requested access points – by modification or variance – were part of the written record,
were discussed at length at the Council hearing, and are expressly allowed in City Code. Access
was not an issue at the Planning and Zoning Commission hearing because the modification and
variance are Council-level only decisions. The City Code grants this Council the inherent authority
to modify its access standards when you receive a recommendation from the Idaho Transportation
Department in support of the access, and no specific application, notice, or process is required.
The City Code was available for review by all interested parties.
Applicant submitted detailed written testimony regarding access prior to the Council
hearing in Applicant’s response to the staff report, including proposed findings for both a
modification and a variance for the Council’s consideration. Applicant also provided testimony on
the legal bases for approving the requested access by modification or variance at the Council
City of Meridian
Mayor and City Council Members
May 15, 2018
Page 2
hearing (at 4:56:05 and 6:41:47 of hearing video). Ms. Carroll and her clients each had two separate
opportunities to address access at the hearing because the Council opened up the public testimony
for a second time. And, Ms. Carroll did in fact provide testimony, responding to arguments about
the variance and modification bases for the access decision (at 2:43:22 and 6:23:25).
In the motion to approve the applications (at 6:45:40), Council Member Palmer referenced
Applicant’s comments and response to the staff report, including comments made by Applicant
for the findings:
I move we approve H-2018-0004 including the comments and reply from the
applicant and the agreements between staff and the applicant, and include that they,
that a DA modification be required to approve, that council would approve, the
elevations for the Costco and the variance for the connections to Chinden citing the
ITD’s approval and the comments made by the applicant for the findings.
Consistent with the motion approved by the Council, the written findings adopted by the Council
reflect Applicant’s comments at the hearing and on the staff report, including comments on the
findings for the requested access points.
II. Ex Parte Claim
Council Member Palmer’s review of the internet during the hearing to find examples of a
Costco constructed adjacent to existing residences does not constitute an improper ex parte
communication. He disclosed his search and the information he found during the hearing (at
3:47:40) when the public had an opportunity to rebut the information.
Further, any knowledge the Council gained from Palmer’s disclosed internet search was
not necessary to form the basis of the Council’s decision. In response to neighbor testimony,
Applicant presented testimony and photographs of several examples of Costco store locations
adjacent to residences (at 4:49:55).
III. Sufficiency of Decision
The adopted Findings of Fact, Conclusions of Law and Decision & Order (“Findings”)
reference and incorporate the staff report as Exhibit A. The staff report describes the criteria and
standards applicable to each application. The report identifies facts and arguments presented by
the Applicant, commenting agencies, and the public and references the Council hearing minutes
and record for additional information. The staff report includes a detailed description of applicable
comprehensive plan policies and, for each, describes how the specific policy is met by the
applications. For each required finding per City Code for the applications presented, the staff report
applies the facts and explains how the finding is met. This satisfies LLUPA’s requirement in Idaho
Code § 67-6535 for a reasoned written statement granting the applications.
City of Meridian
Mayor and City Council Members
May 15, 2018
Page 3
Applicant requests the Council deny the Coalition’s Request for Reconsideration. The
Coalition members had a full and fair opportunity to participate in the Council hearing and, in fact,
were provided with an additional opportunity to address the Council following the initial
testimony. The Request for Reconsideration does not identify any errors that warrant a rehearing.
To the extent the Council believes further explanation of its rationale for the decision is
appropriate, then Applicant requests the Council modify its findings without rehearing the matter.
Thank you for your consideration of this response.
Sincerely,
Deborah E. Nelson
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