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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 14196248_4.docx [5362-4]