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