Loading...
Z - Request for Reconsideration - Protect MeridianCARROLL LAW PLLC REQUEST FOR RECONSIDERATION TO: City of Meridian, Mayor and City Council Members FROM: Andrea D. Carroll, "Protect Meridian" DATE: February 19, 2019 RE: Linder Village (H-2017-0088) This Request for Reconsideration is submitted on behalf of my clients, a coalition of Meridian residents who have informally organized as "Protect Meridian." Specific individuals have joined in this and other requests for reconsideration to preserve their ability to appeal the City of Meridian's approval through a judicial review, including: Greg Reynolds Lori Badigian Jonathan M. Kahnoski Sally Reynolds Barbara Badigian Betsy M. Kahnoski Jeffrey Badigian Leonard Badigian I. Variance Criteria At the City Council hearing that occurred on January 15, 2019, the City for the first time articulated a legal argument that an access point on Chinden could be approved through any other means other than the variance permit. The neighbors who participated in the hearing, including those listed above, relied on the sufficiency of the public notice, the staff report, and other documents in the record as representing a complete summary for the basis of the application permits. The findings themselves are vague and unspecific with regard to an articulation of an undue hardship tied to the physical characteristics of the site rather than the applicant's intended use. To the extent the City has relied on its interpretation of the Unified Development Code (U.D.C.) § 11-314-3 as a basis to approve direct access to Chinden without a variance, such interpretation of city ordinance is inconsistent and outside the authority granted to the City under Idaho Code § 67-6516. II. Findings Insufficient with LLUPA and Due Process Requirements Idaho Code requires a land use body to adopt Findings of Fact and Conclusions of Law and should also include: [A] reasoned statement that explains the criteria and standards considered relevant, states the relevant contested facts relied upon, and explains the rationale for the decision based on the applicable provisions of the comprehensive plan, relevant ordinance and statutory provisions, pertinent constitutional principles and factual information contained in the record. Idaho Code § 67-6535(2). ANDREA D. CARROLL RO.BOX 2006 • BOISE IDAHO 83701 • ADC@IDAHOPROPERTYLAW.COM (208) 949-9670 The City of Meridian's findings are conclusory and do not explain the factual basis in the record to support each of the City's legal conclusions. The approved findings do not demonstrate compliance with the applicable legal principles and do not acknowledge the resolution of factual disputes or other legal issues raised throughout the public hearing process. The findings do not provide the neighbors an opportunity to examine the basis of the decision reached by the City Council in any meaningful way. Furthermore, the findings are insufficient for a Court to evaluate whether the City Council followed the appropriate standards, ordinances, statutes, and constitutional principles in reaching its decision. III. Conditional Use Permit Required Pursuant to Meridian City Code, the applicant is required to obtain a Conditional Use Permit (CUP) to operate a 24-hour store: Business hours of operation within the C -C and C -G districts shall be limitedfrom 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.' Meridian City Code provides the following definitions for the Unified Development Code: ABUT or ABUTTING: Having a common border with the subject property. 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.2 At the public hearing on November 21, 2017, City staff explained that the applicant did not apply for a CUP because the WinCo store will not "abut" residential property after the final plat is subdivided. However, this interpretation of the ordinance is inconsistent with the definition of "property" as a "parcel" of "unplatted land." These explicit definitions contained in the zoning ordinance cannot be ignored -- the provisions must be construed together. Using these definitions, if the unplatted parcel has a common border with a residential use, then a CUP is required. Approving this application without considering the required CUP findings is a violation of a plain language reading of Meridian's ordinance. Permission to operate at all hours cannot be provided for as a term of the development agreement, either. Doing so would be inconsistent with Idaho Code.' I U.D.C. § 11-213-3.A.4 (emphasis added). 2 U.D.C. § 11-1A-1 (emphasis added). s The proposed conditional use cannot be granted through a development agreement, as doing so would be outside the City's statutory authority. See Idaho Code § 67-6511 A. 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 the City authority to grant additional uses or special privileges beyond what is ordinarily allowed in the assigned zone through a development agreement. REQUEST FOR RECONSIDERATION OF LINDER VILLAGE (H-2017-0088) Page 2 IV. Conclusion The above articulated deficiencies should not be interpreted as an exclusive list of issues for judicial review. While this request represents a good -faith effort to identify the potential procedural and legal errors that could be a basis for a petition for judicial review, this request is required by statute in a short time frame and the process is not conducive to a more in-depth legal analysis. Additional issues may be articulated in a petition for judicial review filed with the district court. The above issues present a sufficient basis for the City of Meridian to reconsider its decision in the form of a new hearing or revised findings that accurately reflect the City's findings based on the record. REQUEST FOR RECONSIDERATION OF LINDER VILLAGE (H-2017-0088) Page 3 1 Charlene Way From:Sonya Allen Sent:Friday, February 22, 2019 3:20 PM To:Andrea Carroll Cc:Bill Nary; Caleb Hood; Bill Parsons; Cameron Arial; C.Jay Coles; Charlene Way; Chris Johnson Subject:Linder Village - Protect Meridian - Request for Reconsideration Attachments:Linder Village Req for Reconsideration.pdf Hi Andrea, The City has received your request for reconsideration and it will be reviewed by the City Attorney to determine if it meets the requirement of identifying specific deficiencies in the land use decision as required by MCC 1-7-10 Procedure for Request for Reconsideration. If it’s determined that it does meet the requirement, the request will be scheduled to be heard at a regularly scheduled City Council meeting; notice of the meeting will be provided to you. No additional evidence or testimony will be allowed at the City Council meeting. The Council will consider the request and may affirm, reverse, or modify its decision after compliance with the applicable procedural standards. If necessary, the Council may direct a new public hearing and all the procedures and notices that are necessary will be done prior to a new public hearing. A written decision will be provided to you within 60 days of the request. If you have further questions on the request for reconsideration process, please contact Bill Nary, City Attorney. Thank you, Sonya Allen From: Andrea Carroll <adc@idahopropertylaw.com> Sent: Tuesday, February 19, 2019 12:19 PM To: Sonya Allen <sallen@meridiancity.org> Cc: C.Jay Coles <cjcoles@meridiancity.org>; Bill Nary <bnary@meridiancity.org> Subject: Protect Meridian - Request for Reconsideration Sonya, I am attaching a Request for Reconsideration on behalf of Protect Meridian. I am also aware of other requests for reconsideration that will be submitted today. My clients and I encourage the Meridian City Council to consider a rehearing based on all of the worthy bases articulated by other community members, as well. Thank you, Andrea Carroll Attorney at Law Carroll Law, PLLC (208) 949-9670 idahopropertylaw.com