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Z - Memorandum Decision and Order on Petition for Judicial ReviewNO. F� IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DIS'I� vP "" THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA FEB 2 7 2019 RICKEY L. BURKE, an individual; ROBERT NEUFELD, an individual; and DAVID J. REYES, an individual, Petitioners, Vs. CITY OF MERIDIAN, an Idaho municipal corporation, Respondent, and BRIGHTON INVESTMENTS, LLC; GFI— MERIDIAN INVESTMENTS II, LLC; and COSTCO WHOLESALE CORPORATION, Intervenors. PHIL MoGRANE, Clerk By RIC NELSON oePM Case No. CVO' -18-10887 MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW This case is a Petition for Judicial Review from the City of Meridian City Council's' decision to allow development of the Lost Rapids Development (the "Development"). The Court finds based on the unique potential impacts of this Development, Petitioners have standing, but the Petition must be denied as Petitioners have failed to show how any of their substantial rights were infringed by the approval of this Development. Factual and Procedural Background This Petition involves the application by Brighton Investments, LLC, and GFI-Meridian Investments II, LLC and the intended commercial anchor tenant, Costco Wholesale Corporation ' Because the City Council is a part of the larger City of Meridian government, where the action being discussed was specifically done by the City Council, it will be referred to as "the City Council." Where the action is a general action done by any other part of the City of Meridian government, or where the City of Meridian is being referenced as a party to this action, it will be referred to as "the City." MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 1 (together, the "Intervenors" or "Applicants") for a mixed-use residential and commercial project known as the Lost Rapids Development. The Development in question is 78.3 acres located at the southwest corner of Chinden Boulevard, State Highway 20/26 ("Chinden") and Ten Mile Road in Meridian. The Development, as proposed, required applications for Annexation and Zoning, a Comprehensive Plan Amendment, the approval of a Preliminary Plat (or "Plat Approval"), and a Variance to allow direct access onto Chinden (collectively the "Application"). The Development is to be completed in phases with the commercial portion being the first phase which includes as an anchor retailer, a Costco warehouse store. The Applicants submitted the Application in mid-January 2018. In early March, 2018, after the required notices were posted, mailed, and published, an initial public hearing was held in front of the Meridian City Planning and Zoning Commission ("the Commission"). The morning of that hearing, Applicants amended the Application to request a change in the land use designations for 32.83 acres of the Development from Medium Density Residential and Mixed Use -Community to Commercial. R. 265-2662. The Commission heard and considered verbal and written testimony from both the Applicants and the public; and following deliberations, voted to recommend that the City Council approve the Application as amended. The required notices were again posted, mailed, and published, and an agenda was made available to the public regarding the City Council's intent to consider the Application during a City Council meeting to be held about one month later. During that hearing, the City Council reviewed the amended Application, recommendations from City staff ("the Staff Report"), and written public comments and testimony. The City Council also heard oral testimony from both the Applicants and the public. After considering and deliberating regarding all of the information 2 The Settled Transcript filed on 7/23/18 is abbreviated to Tr. and then the applicable page number. The Settled Record was also filed on 7/23/18 and is made up of 55 volumes with a consecutive page numbers from 1 to 4856 and is abbreviated to R. and the applicable page numbers. MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 2 presented, the City Council voted on and unanimously approved the Application. Tr. 360; R. 4003. Three weeks later, the City Council issued written Findings of Fact and Conclusions of Law, and Decision & Order ("the Decision"). R. 4361-4438. Petitioners timely filed a Request for Reconsideration which was heard about three weeks later. R. 4450 (Request for Reconsideration); R. 4452 (Hearing on Petitioners' Request for Reconsideration). That same day, the City Council issued a written memorandum denying Petitioners' Request for Reconsideration. R. 4567. Petitioners timely filed a Petition for Judicial Review and a hearing was held on November 27, 2018 at which time the Court took the matter under advisement. Standard of Review "The Local Land Use Planning Act (LLUPA) allows an affected person to seek judicial review of an approval or denial of a land use application, as provided for in the Idaho Administrative Procedural Act (IDAPA)." Idaho Code § 67-6521(1)(d); Cowan v. Bd. of Commis of Fremont Cty., 143 Idaho 501, 508, 148 P.3d 1247, 1254 (2006) (citing Evans v. Teton County, 139 Idaho 71, 74, 73 P.3d 84, 87 (2003)). For purposes of LLUPA, a local agency making a land use decision such as the Meridian City Council made here, is treated as a government agency under IDAPA. Urrutia v. Blaine County, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000). A governing board's "planning and zoning decisions are entitled to a strong presumption of validity; this includes the board's application and interpretation of their own zoning ordinances." Cowan, 143 Idaho at 508, 148 P.3d at 1254 (citing Sanders Orchard v. Gem County, 137 Idaho 695, 698, 52 P.3d 840, 843 (2002)). The City Council's actions shall be affirmed unless the Court finds the City Council's findings, inferences, conclusions or decisions MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 3 are in violation of constitutional or statutory provisions; the City Council exceeded its statutory authority; the decision was made based on unlawful procedure; the decisions of the City Council are not supported by substantial evidence on the record; or the City Council's decisions were arbitrary, capricious or an abuse of discretion. See Cowan, 143 Idaho at 508, 148 P.3d at 1254. The Petitioners challenging the agency action "must first illustrate that the board erred in a manner specified therein and must then show that a substantial right of the party has been prejudiced." Id. (citations omitted.) Analysis A. Petitioners have articulated a potential injury and have standing to challenge the City Council's decision. Both Respondent City and Intervenor have argued Petitioners do not have standing to bring this particular suit. "Idaho's standing requirement `is a self-imposed constraint adopted from federal practice, as there is no `case or controversy' clause or an analogous provision in the Idaho Constitution as there is in the United States Constitution."' Employers Res. Mgmt. Co. v. Ronk, 162 Idaho 774, 777, 405 P.3d 33, 36 (2017) ("ERNIC") (quoting Coeur d'Alene Tribe v. Denney, 161 Idaho 508, 513, 387 P.3d 761, 766 (2015)). Because "[t]he doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated," the Court must first determine if any of the petitioners have standing to challenge the decision. Miles v. Idaho Power Co., 116 Idaho 635, 641, 778 P.2d 757, 763 (1989) (citing Valley Forge Christian College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464 (1982) (abrogated on other grounds by Bowen v. Kendrick, 487 U.S. 589, 618-19 (1988))). MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 4 1. Standing under LLUPA generally requires that potentially impacted property owners are either adjoining or adjacent property owners to a proposed development and such property owners can show injury caused by the proposed development. There are three standing requirements: first, "a showing of a distinct palpable injury [in fact];" second, a "fairly traceable causal connection between the claimed injury and the challenged conduct;" and finally, a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury." Coal. for Agric. 's Future v. Canyon Cty., 160 Idaho 142, 146, 369 P.3d 920, 924 (2016) (citations and internal quotation marks omitted). The injury in fact must "be `concrete and particularized' and `actual or imminent, not conjectural or hypothetical."' Tucker v. State, 162 Idaho 11, 19, 394 P.3d 54, 62 (2017) (quoting State v. Philip Morris, Inc., 158 Idaho 874, 881, 354 P.3d 187, 194 (2015)). Causation requires the party to show the injury is "fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court." Id. at 21, 394 P.3d at 64 (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). But even if a party can show both injury and causation, they must still show it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision" by the court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations removed); see also ERMC, 162 Idaho at 777, 405 P.3d 36 (quoting Tucker, 162 Idaho at 24, 394 P.3d at 67). In Idaho, LLUPA only allows a person with "a bona fide interest in real property which may be adversely affected" by a land use decision to challenge it. I.C. § 67-6521. "[I]n land use decisions, a party's standing depends on whether his or her property will be adversely affected by the land use decision." Cowan, 143 Idaho at 509, 148 P.3d at 1255 (citing Evans, 139 Idaho at 75, 73 P.3d at 88). If the property owner "is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily `substantially more difficult' MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 5 to establish." Employers, 162 Idaho at 778, 405 P.3d at 37 (quoting Lujan, 504 U.S. at 562 (in turn quoting Allen v. Wright, 468 U.S. 737, 758 (1984))). Thus, not every landowner can challenge every land use decision where such landowner is not the applicant requesting the agency to make a land use decision. A court is more likely to find standing where the landowner's property is "adjoining the proposed development" or "adjacent to" it. See Evans, 139 Idaho at 75, 73 P.3d at 88, and Cowan, 143 Idaho at 509-510, 148 P.3d 1255-56 (properties were "adjoining the proposed development"); Johnson v. Blaine Cty., 146 Idaho 916, 920, 204 P.3d 1127, 1131 (2009) (property was "adjacent to" proposed development); see also I.C. § 67-6516 (Notice required for property owners whose land is "adjoining the parcel under consideration"). A property is `adjoining' when it is "[t]ouching [or] sharing a common boundary" with another property. Adjoining, BLACK'S LAw DICTIONARY (10th Ed. 2014). A property is `adjacent' to another when it "[lies] near or close to, but not necessarily touching." Adjacent, BLACK'S LAW DICTIONARY (10th Ed. 2014). However, Courts "will not look to a predetermined distance in deciding whether a property owner has, or does not have, standing to seek judicial review of a LLUPA decision." Evans v. Teton Cty., 139 Idaho 71, 75, 73 P.3d 84, 88 (2003). Thus, even if a particular property is located some distance from the proposed development, a traceable injury can be found if the landowner can show a unique situation that will negatively impact their land. Davisco Foods Intl, Inc. v. Gooding Cty., 141 Idaho 784, 790, 118 P.3d 116, 122 (2005) (finding probable injury where expert testimony showed how odors from a proposed wastewater treatment plant would potentially impact a property three miles away). MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 6 2. For properties not adjoining or adjacent to a proposed development, the landowner must show evidence of a particularized or peculiarized harm that would directly result from the challenged land use decision. While location matters somewhat, the landowner must still show "[t]he existence of real or potential harm" to their property. Evans v. Teton Cty., 139 Idaho 71, 76, 73 P.3d 84, 89 (2003) (emphasis added). There must be evidence showing that the land use decision "would inconvenience the [challenging party] in some manner, limit its use and enjoyment of the property, or cause economic harm" particular to them regardless of the parcel's distance from the proposed development. Ciszek v. Kootenai Cty. Bd. of Commis, 151 Idaho 123, 128, 254 P.3d 24, 29 (2011) (internal citations removed); See also Student Loan Fund of Idaho, Inc. v. Payette Cty., 125 Idaho 824, 828, 875 P.2d 236, 240 (Ct. App. 1994) ("The situs of owned property in relationship to an area touched by an ordinance is relevant to a standing inquiry only insofar as the property's location exposes the landowner to peculiarized harm"). In addition, merely being a landowner within a reasonable distance from the proposed development "does not relieve a complainant of the necessity of demonstrating a distinct palpable injury traceable to the challenged governmental conduct." Student Loan Fund of Idaho, Inc., 125 Idaho at 828, 875 P.2d at 240 (internal quotation marks and citations removed). Even if the landowner can show a potential injury that is directly traceable to the challenged governmental action, "it cannot be only speculative that a favorable decision will redress the injury." Tucker, 162 Idaho at 24, 394 P.3d at 67 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)). This does not mean that the party is required to show "that a favorable decision will inevitably redress [the] injury," only that "a favorable decision is likely to redress [the] injury." ERMC, 162 Idaho at 777, 405 P.3d at 36 (emphasis added) (quoting Beno v. Shalala, 30 F.3d 1057, 1065 (9th Cir. 1994)). MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 7 In other words, the challenging party must follow the old writing adage of "show, don't tell." For a party to "show" something, they need to "make (facts, etc.) apparent or clear by evidence." Show, BLACK'S LAw DICTIONARY (10th Ed. 2014). They can "prove" the allegations by "establish[ing] the truth of (a fact or hypothesis) by satisfactory evidence." Prove, BLACK'S LAw DICTIONARY (10th Ed. 2014). A `peculiarized' harm is one that is "[d]ifferent from the norm; special; [or] particular." Peculiar, BLACK's LAw DICTIONARY (10th Ed. 2014). Thus, if a parry fails to show that the potential harm to their property is peculiar, that it can be traced directly back to the challenged government action, and that it can be redressed by the court, then their claim must fail. 3. Petitioners' properties are not adjoining to the proposed development, but Petitioners have shown particular or peculiar injuries resulting from the City Council's land use decision. Here, the first question then is for the Court to determine if any of the Petitioners' properties are adjoining or adjacent to the Development. Meridian's City Code ("the Code") provides some guidance on that issue. It is undisputed by the Petitioners that none of their individual properties adjoin the Development. A property is "adjacent" if the Petitioners' properties are not widely separated from the Lost Rapids Development. The Code requires that all property owners within 300 feet of a parcel with a proposed variance are notified. (UDC § 1I - 5A -6(E)(2)). The City argues because each Petitioner's property is located greater than 300' feet from the Project3, it would be reasonable to determine that Petitioners' properties are not adjacent. The Court agrees with Petitioners that the 300 feet radius boundary for written notice of an application may be too restrictive an interpretation of whether a property can be considered to 3 Petitioner Neufeld lives across Chinden, approximately 1,500 feet due north from the proposed development (R. 4022); Petitioner Reyes lives approximately 1,000 feet from the southwest corner of the proposed development (R. 4028); and Petitioner Burke lives approximately 1,000 feet due east of the proposed development (R. 4054). MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 8 be adjacent. Since each of the Petitioners are within a half mile of the Project and the Project is both residential and commercial in scope, it is reasonable to find property owners beyond 300 feet may arguably be adjacent landowners potentially affected by the Project. Like the property owner in Davisco who was found to be an affected party based on evidence of increased smells located three miles from a project, the fact that Petitioners are 1000 to 1500 feet away and separated by a roadway and other houses from the Development does not alone defeat their argument for being an affected party. Because the location of the property is only part of what the Court must consider, the Court needs to next look at each Petitioner's actual testimony to determine if any of them have shown a peculiarized or harm. In Petitioner Burke's testimony, outside of describing how the plan does not fit within various Meridian City ordinances or plans, he only relates how he came from California to escape "uncontrolled development" and how he is worried the same thing will happen in Meridian if this development is approved. R. 4029. He does not offer any evidence showing how the development will personally impact his property. Similarly, Mr. Reyes testified that he may not have purchased his home if he had suspected that a Costco would be built nearby; but other than saying, "I don't like them in the backyard," he does not show how the development would personally impact his "quality of life." R. 4054. Neither Petitioner Burke nor Reyes has shown how their properties would be personally impacted by the City Council's approval of the Development. Petitioner Neufeld's testimony also does not satisfy the injury requirement of being personally impacted. His testimony described his background with various California water agencies and his expertise in dealing with underground fuel storage tanks. R. 4022-25. He testified about the possibility of lawsuits against the City if the proposed fuel tanks in the development were to leak and how the water table is high enough that there could be substantial MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 9 pressure on the underground tanks because of that high water table. R. 4023. Nowhere in his testimony does he show how the development itself or lawsuits from potential fuel leaks would impact him personally. What he does imply is that any potential leaks from the underground tanks could contaminate the area's water supply. R. 4023. However, he does not show how that would impact him personally; he only implies he would be impacted as a member of a large group of citizens that could be harmed. Petitioners (citing Cisnek v. Kootenai County Bd. of Commis, 151 Idaho 123, 254 P.3d 24 (2011)) argue in their reply brief that they merely need to show the "possibility" of injury and that "allegations" of interference with the use and enjoyment of their property and, decreased property values are sufficient to demonstrate a particularized harm. The Court finds Petitioners' allegations in this case are distinguishable from those in Ciszek where the landowner was determined to be adjacent to the rezoned property, alleged a decrease in value by over $10,000, and rezoning would result in "detrimental dust, noise and traffic created." Ciszek, 151 Idaho at 128, 254 P.3d at 29. Here, Petitioners are not directly adjacent, have provided no evidence of an estimated decrease in their home values if the Project proceeds and a Costco store is built. Instead, Petitioners testified they just do not want this Project in their backyard or this type of development near them. It is, however, undisputed that the Development will increase traffic in the area by over 11,000 vehicle trips per day related to Phase I (Costco Only). R. 405. Therefore, the Court will analyze if the traffic increase is enough of a particularized harm to establish standing for the Petitioners in this case. In their briefing, Petitioners allege "they will be subjected to increased traffic delay and congestion with the development because it will take direct access from Chinden, slowing down the overall flow of that state highway as a corridor in either direction." Pet. Br. at 9. The Court finds Petitioners can rely on evidence in the record and testimony from MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 10 others at the public hearings about the change in zoning from Medium Density Residential and Mixed Use -Community to Commercial for the Costco store site as well as safety concerns regarding increases in traffic to roadways Petitioners regularly use based on the proximity of their homes to the Development. This is allowed even if Petitioners themselves did not testify specifically how the increased traffic from the commercial development will specifically impact them. The Idaho appellate courts have not directly addressed the issue of LLUPA standing and increased traffic from a commercial development. The Supreme Court has said that "[a]n increase in noise or traffic in the surrounding area [by itself] is not enough to indicate sufficient change in the character of the neighborhood to invalidate" zoning restrictions. Ada Cty. Highway Dist. By & Through Silva v. Magwire, 104 Idaho 656, 659, 662 P.2d 237, 240 (1983) (citing Cordogan v. Union Nat'l Bank, 64 I11.App.3d 248, 21 I11.Dec. 18, 380 N.E.2d 1194 (I11.App.1978) and Eilers v. Alewel, 393 S.W.2d 584 (Mo. 1965)). Other courts that have directly addressed the issue have found that "potential changes to the neighborhood, including increased traffic ... are general problems and not problems specific to" individual citizens. Anne Arundel Cty. v. Bell, 442 Md. 539, 585, 113 A.3d 639, 667 (2015). The difference in this case is that the rezoning approved by the City Council changes the "characteristics" of the neighborhood area dramatically from Medium Density Residential and Mixed Use - Community to Commercial designation for 32.83 acres of the 78.33 acres in the Development. R. 4365. The significant change in the characteristics of the land use, as well as the documented significant traffic increase due to the commercial anchor retailer in this case, justifies a finding that a particularized harm will potentially affect more than just the adjoining and adjacent landowners within 300 feet of the Development. MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 11 The Court finds Petitioners within a half mile of the Project have alleged quantifiable allegations of interference with the use and enjoyment of their property due to very significant traffic impacts and those allegations are sufficient to demonstrate a potential particularized harm to Petitioners. Further, there appears to be a substantial likelihood that a ruling in Petitioners favor would prevent such potential harms. Therefore, based on the unique and significant traffic increases alleged in this case of over 11,000 cars related to the anchor retailer, as well as the substantial change in the characteristics of the zoning for the neighborhood, the Court finds Petitioners (who will use the same roadways that access the commercial portion of the Development and live less than a half mile away from the Development) have standing to proceed with their Petition for Judicial review. B. The City Council's actions that are reviewable by this Court were lawful and based on sufficient evidence, no ex parte communication occurred, and Petitioners' substantive and procedural due process rights were not violated. In their brief, Petitioners raise eight issues on appeal which can be addressed in three broad categories: the first involves claims that the City Council's decision was not valid (Issues 1-5 and 7), the second involves alleged ex parte activity that happened during the public hearing before the City Council (Issue 6), and the third raises due process concerns with the actions of the City and City Council (Issue 8). Pet.Br. at 7. However, before the Court can discuss the merits of those claims, it must first discuss the issue raised by both the City and Intervenors regarding whether certain aspects of the City Council's decision are even subject to review by the Court. The City and Intervenors argue LLUPA only "permits judicial review of some land use decisions made by a governing board," not all of them. Highlands Dev. Corp. v. City of Boise, 145 Idaho 958, 961, 188 P.3d 900, 903 (2008) (emphasis added); Resp.Br. at 7; Intv.Br. at 13. MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 12 1. The Court may only review those claims related to the City Council's approval of the variance and the preliminary plat. A court may review an administrative action only when that review is "expressly authorized by statute." I.R.C.P. 84(a)(1); In re City of Shelley, 151 Idaho 289, 292, 255 P.3d 1175, 1178 (2011). LLUPA authorizes judicial review of "some land use decisions," but not all of them. Highlands Dev. Corp., 145 Idaho at 961, 188 P.3d at 903. In addition to permitting review by those "adversely affected by the issuance or denial of a permit authorizing development," I.C. § 67-6521, it specifically permits judicial review for issues surrounding applications "for permit[s] required or authorized under LLUPA," I.C. § 67-6519; "special use permits, I.C. § 67-6512; subdivision permits, I.C. § 67-6513; planned unit development permits, I.C. § 67-6515; variance permits, I.C. § 67-6516; and building permits, I.C. § 67-6517." Highlands Dev. Corp., 145 Idaho at 961, 188 P.3d at 903. What is not allowed is review of amendments or modifications to the comprehensive plan. Burt v. City of Idaho Falls, 105 Idaho 65, 68, 665 P.2d 1075, 1078 (1983) (holding legislative actions, such as comprehensive plan amendments, are not subject to direct judicial review because legislative action is shielded from direct judicial review). In addition, "it is well established that neither LLUPA, IDAPA, nor a city's ordinances, rules and regulations authorize judicial review of a category A annexation. Furthermore, we hold that, under a plain reading of I.C. § 50-222, judicial review is not authorized for category A annexations." In re City of Shelley, 151 Idaho at 292, 255 P.3d at 1178; see also Black Labrador Investing, LLC v. Kuna City Council, 147 Idaho 92, 97, 205 P.3d 1228, 1233 (2009); Highlands Dev. Corp., 145 Idaho at 963 n. 4, 188 P.3d at 905 n.4 ("Judicial review of an annexation decision, if available, must be made pursuant to [I.C. § 50-222]"). Petitioners maintain in their reply brief that the 2010 Amendments to I.C. § 67-6521 should be interpreted to broaden the types of actions that are reviewable by the Court. The Court MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 13 respectfully disagrees with this argument. The Court must apply the statute as written by the legislature. The legislature specifically limited judicial review for affected property owners in I.C. § 67-6521(1)(a) to: (i) The approval, denial or failure to act upon an application for a subdivision, variance, special use permit and other similar applications required or authorized pursuant to this chapter; (ii) The approval of an ordinance first establishing a zoning district upon annexation or the approval or denial of an application to change the zoning district applicable to specific parcels or sites pursuant to section 67-6511, Idaho Code; or (iii) An approval or denial of an application for conditional rezoning pursuant to section 67-6511 A, Idaho Code. The Court need not consider the legislative history of the amendment or engage in statutory construction analysis as the language used in the statute is plain and unambiguous. State v. McCoy, 128 Idaho 362, 365, 913, P. 2d 578, 581 (1996). Here, Petitioners did not ask for a review of the annexation decision of the development site under I.C. § 50-222, so this Court will not review that decision. Pursuant to Burt v. City of Idaho Falls, the City Council's modification and amendment to the comprehensive plan to change the land use designations are also not available for judicial review. Burt, 105 Idaho at 68, 665 P.2d at 1078. Thus, the only decisions available for judicial review are those decisions regarding the applications for the variance and for the Development's preliminary plat. The Court will address the City Council's actions as they relate to those two decisions. 2. The City Council's actions were a valid exercise of its discretion and within its statutory authority; and those actions were not arbitrary, capricious, or an abuse of discretion. The broadest category of Petitioners' claims involves allegations that the City Council's actions were in violation or excess of constitutional or statutory provisions (Issues 1 and 2); that the City Council's actions were "taken upon unlawful procedure" (Issue 3); that the City MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 14 Council's actions were "unsupported by substantial evidence on the record as a whole" (Issue 4); that the City Council's actions were "arbitrary, capricious, or [were] an abuse of discretion" (Issue 5); or that the City Council's written decision was not "in compliance with Idaho and constitutional law" (Issue 7). LLUPA's procedural requirements include publication of the requirements for variance permits, I.C. § 67-6516; the criteria and standards for written decisions issued by a governing board I.C. § 67-6535; and other procedural requirements from the Idaho Administrative Procedures Act relating to those areas not covered by LLUPA's more specific provisions. I.C. § 67-6501; see also In re Jerome Cty. Bd. of Commis, 153 Idaho 298, 307, 281 P.3d 1076, 1085 (2012). When a governing board acts within those provisions, that decision is entitled to deference by a reviewing court. Terrazas v. Blaine Cty. ex rel. Bd. of Commis, 147 Idaho 193, 204, 207 P.3d 169, 180 (2009). The governing board's decision shall be affirmed: unless the Court finds that the agency's findings, inferences, conclusions or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) not supported by substantial evidence on the record as a whole; and (e) arbitrary, capricious, or an abuse of discretion. Cowan v. Bd. of Commis of Fremont Cty., 143 Idaho at 508, 148 P.3d at 1254 (quoting Eacret v. Bonner County, 139 Idaho at 784, 86 P.3d at 498 (internal citations omitted)). Here, the record regarding the City Council's decision is nearly 5,000 pages in length. Throughout that record, there is substantial evidence that the City Council followed the procedure required by LLUPA, including giving specific written notice to potentially affected property owners. See R. 113-195. Additionally, the City gave notice to the public via publication and the Applicants posted notice of hearings at the Development site. The Commission and the City Council allowed landowners and other parties, including Petitioners, an opportunity to comment on the proposed application. R. 1125-2797 (Written Public comments to Planning and MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 15 Zoning Commission); R. 3358-3996 (Written Public comments to City Council); R. 4000-4360 (Minute Book Entries for relevant portion of City Council Hearing); R. 4550-51 (Petitioners' Request for Reconsideration); R. 4557-66 (Minute Book Entries for relevant portion of City Council Meeting on Request for Reconsideration). The Court finds that the due process requirements of the applicable statutes, ordinances and the City's Unified Development Code were complied with regarding the Applications related to this Development. The City Council also issued a written decision. The Court agrees with Petitioner that the written decision is somewhat confusing to follow at first glance. However, the Findings of Fact, Conclusion of Law and Decision & Order does satisfy the statutory and constitutional requirements because it gives a decision and supports that decision based upon evidence in the record before it. R. 4361-4438 (City Council Findings of Fact, Conclusions of Law and Decision & Order) and R. 4567-68 (Written Decision Denying Request for Reconsideration). Petitioners argue it is impossible to find the Findings of Fact are sufficient when there are only four sentences listed on R. 4361. But because each of the Findings of Fact incorporate by reference the attached Staff Report for the hearing date of April 3, 2018, it is clear to the Court that R. 4366-67 of the Staff Report addresses the Hearing Facts; R. 4368-4369 addresses the Process Facts; R. 4368 addresses the Application and Property Facts; and R. 4435-4438 addresses the Required Findings from Unified Development Code. As to the Petitioners' challenge to the Conclusions of Law and the City Council's authority, they are broadly set forth on R. 4361-4362 and in more detail the Staff Report on R. 4365-4438. While it is true the Staff Report indicates on R. 4366 and R. 4385 that the staff recommended approving only the proposed amendment to the comprehensive plan, annexation and preliminary plat applications (with recommended changes) and recommended denying the variance request, the City Council did not follow the staff recommendations. The Staff Report MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 16 recommendations section ends by noting the variance request decision was up to the City Council. R. 4366. The City Council revised Exhibit D of the Staff Report's "Required Findings from Unified Development Code addressing the comprehensive plan amendment; the annexation and zoning; the preliminary plat; the modification of UDC state highway access standards and the variance request to support the City Council's approval of all applications for the Development. R. 4435-4438. The fact that not all the staff recommendations at the beginning of the Staff Report were followed by the City Council does not mean the City Council did not make the requisite findings and conclusions of law to support its decision to approve all aspects of the application for the Development. Reading the record as a whole, it clearly sets forth the facts, process, conditions and conclusions of law, reasoning for the City Council's decision on the Development and the conditions for the Development. The City Council need not address with particularity in its decision each individual issue raised by the Petitioners (such as the potential for fuel leaks impacting the water quality) or others in approving the Development. The City Council acknowledges in its Findings of Fact, Conclusions of Law and Decision & Order that it reached its decision after consideration of the record and public testimony. R. 4366-4367 (summaries of public hearings and Commission changes to staff recommendations and Council's changes to Commission recommendation regarding conceptual building elevations). The Court finds the City Council documented in its decision the lawful process it followed to reach its decision, as well as including substantial evidence supporting the findings of fact and legally sound conclusions of law in support of its decision as required by Jasso v. Camas County, 151 Idaho 790, 795-96, 264 P.3d 897, 902-903 (2011). The Court acknowledges based on its review of the entire record, including the transcripts of the public hearings, that there were many supporters and many opponents of this MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 17 Development. It is not the Court's job to determine which position is the proper position. The City's Council's decisions are entitled to a strong presumption of validity and deference since the City and the City Council complied with and acted within the bounds of the applicable statutes, ordinances, and the Unified Development Code. This Court must next determine if the decisions reached by the City Council regarding the variance and preliminary plat were "arbitrary, capricious or an abuse of discretion." The Court finds the decisions approving the variance and preliminary plat were based on sound legal reasoning supported by substantial evidence as laid out in detail in the Findings of Fact, Conclusions of Law and Decision & Order, and the incorporated Staff Report. The Court also finds Petitioners' argument that the Modification of the Unified Development Code (UDC) State Highway Access Standards was not proper is without merit. Petitioners allege that the City Council impermissibly ceded responsibility to the Idaho Transportation Department ("ITD") regarding traffic and did not independently examine the impact of additional traffic in the area. Pet. Br. at 40-43. The Court respectfully disagrees that the City Council ceded responsibility for addressing traffic safety concerns related to the Development. The City Council was free to consider all evidence presented including ITD's Traffic Impact Study and recommendations. The City Council's determination that modification to the UDC's state highway access standards was warranted was based on substantial evidence including: public comments, the ITD agency comments and data on the proposed development, the City's efforts to reduce the overall impacts of the Development, and to address traffic safety and flow on all roads accessing the Development. R. 4437. Petitioners also claim that modifying the UDC state highway access standards was an end -run around the statutory requirements for a variance. The Court finds that the City Council modified that UDC state highway access standards and satisfied the requisite statutory MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 18 requirements for a variance under I.C. § 67-6516. By proceeding with the statutory process for a variance in addition to the modification, the public was allowed to fully participate in the variance process and the decision to modify state highway access to the Development. In order for the City Council to grant a variance, it must: 1) not grant a right or special privilege that is not otherwise allowed in the district; 2) find the variance relieves an undue hardship because of characteristics of the site; and 3) find the variance shall not be detrimental to the public health, safety, and welfare. See I.C. § 67-6516 (LLUPA requirements), and City of Burley v. McCaslin Lumber Co., 107 Idaho 906, 910, 693 P.2d 1108, 1112 (Ct. App. 1984) (discussing balance between LLUPA and local ordinances). Petitioners argue the reasons given by the City Council for granting a variance do not meet the requirements as defined by case law. The Court finds the City Council's express findings on the variance for state highway access at R. 4437-4438 are legally sufficient. When reviewing the decision of a governing body regarding a variance application, the Court must first determine if the "findings are supported by substantial evidence"; if they are, it must then determine "whether the board's conclusions properly apply the zoning ordinance to the facts as found." McCaslin Lumber, 107 Idaho at 909, 693 P.2d at 1111; see also I.C. § 67- 6535(3) (requirements for Courts considering decisions under LLUPA). "Factual determinations are not erroneous when they are supported by competent and substantial evidence even though conflicting evidence exists." Petersen v. Franklin County, 130 Idaho 176, 182, 938 P.2d 1214, 1220 (1997) (citing Wulff v. Sun Valley Co., 127 Idaho 71, 73-74, 896 P.2d 979, 981-82 (1995)). Among others, one of LLUPA's variance requirements is that the party requesting the variance must show an "undue hardship because of the characteristics of the site." McCaslin Lumber, 107 Idaho at 909, 693 P.2d at 1111 (citing I.C. § 67-6516). If those requirements are met, courts will uphold decisions regarding variances. Vickers v. Lowe, 150 Idaho 439, 445, 247 P.3d 666, 672 MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 19 (2011), and Daley v. Blaine Cty., 108 Idaho 614, 617, 701 P.2d 234, 237 (1985). A variance may not be granted simply because the proposed use of the property is more economical. McCaslin Lumber, 107 Idaho at 910, 693 P.2d at 1112. The party challenging the variance decision has the burden of showing that the decision did not meet the requirements of LLUPA or any applicable local ordinances. Wohrle v. Kootenai County, 147 Idaho 267, 274, 207 P.3d 998, 1005 (2009). In addition, for a variance decision to be upheld, the governing body must follow the requirements of procedural due process because "procedural due process is applicable to proceedings on a request to change the land use authorized for a particular parcel of property, regardless of whether the subject of such proceedings carries the label `variance' or `rezoning."' Gay v. Cty. Commis of Bonneville Cty., 103 Idaho 626, 628, 651 P.2d 560, 562 (Ct. App. 1982). Due process requires the governing body to not predetermine how it will rule before the public has a chance to comment and that the members of that body not have ex parte communications with parties interested in the outcome. Eacret v. Bonner Cty., 139 Idaho 780, 786-88, 86 P.3d 494, 500-02 (2004). Here, Meridian's City Code sets forth the procedure regarding consideration of variance applications and the required findings that match the requirements of Idaho Code § 67-6516. UDC § 11-513-4(C) (Process), and UDC § 11-513-4(E) (Required Findings); R. 4829. The City Code generally prohibits new access directly onto Chinden. UDC § 11-3H- 4(13)(2)(a); R. 4795. However, the City Code also allows the decision maker to "consider and apply modifications to the standards of this article upon specific recommendation of the Idaho Transportation Department." UDC § 11-31-1-3; R. 4794. Thus, under its own ordinances, the City may approve direct access to Chinden either by approving a variance, or by modifying the City Code. Petitioners are challenging the City Council's decision to approve direct access to Chinden. Petitioners allege that the decision to approve the project was primarily, if not solely MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 20 based on the Applicant's willingness "to enter into a `STAR Agreement' with ITD' which would pay for the needed roadway improvements on Chinden. Pet. Br. 11-12. In support of that argument, Petitioners have three citations where this agreement is discussed. Pet.Br. 11-12 (citing Tr. 113:2-24, 117:2-11, 125:25-126:9). However, Petitioner fails to recognize that each of those citations are to the hearing of the Planning and Zoning Commission, not the City Council. While the City Council may consider the recommendations of the Planning and Zoning Commission, those recommendations are not binding on the City Council. While the Court considers the record as a whole, only the decision of the final decision maker has any bearing on the Court's judicial review. Within the City Council's final decision, there is no mention or discussion regarding the STAR Agreement or if that agreement played any role in the City Council's final determination. Thus, Petitioners argument that the decision was made solely for economic purposes is unsupported and without merit. Moreover, even if a STAR agreement did impact the City Council's final decision, such a consideration is not unlawful. As to the City Council's approval of the variance allowing direct access to Chinden, Petitioners are correct that the Staff Report cited by the City Council does recommend against that option. Pet. Br. 15 (citing R. 214, 4385). However, the City Council specifically articulated its approval of the variance with such access and substantial evidence supports that decision. The City Council made specific findings of fact regarding the amount of frontage on Chinden, the insufficiency of alternate roads to move traffic in and out of the property, and the shape of the lot in question, along with the public health, safety and welfare. R. 4437-38. The City Council did not discuss if the proposed use of the property was more economically feasible, instead it based its decision on the physical characteristics of the site and relied on information compiled by ITD as required when making its determination. See UDC § 11-31-1-3 ("The decision making body may consider and apply modifications to the standards of this article upon specific MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 21 recommendation of the Idaho transportation department"). The Court finds it was proper for the City Council to rely on the Staff Report and the ITD Transportation Impact Study. The Court also finds that the City Council properly applied LLUPA and the Meridian City Code when making its determination and will not disturb the City Council's factual findings. Finally, the Court finds that the City Council properly considered the physical characteristics of the site and did not make its determination for any improper economical purpose. While the Court has found that the City Council's approval of the variance was proper, it also finds that the City Council was also within its authority to modify the City Code and grant direct access to Chinden without a variance. For all of the above reasons, the Court finds the decisions reached by the City Council concerning the variance and preliminary plat were supported by substantial evidence and were not arbitrary, capricious, or an abuse of the City Council's discretion or authority under the law and applicable codes and ordinances. Specifically, the Court finds that the City Council acted within LLUPA's provisions; it followed proper procedure; its actions were supported by substantial evidence; its actions were not arbitrary, capricious, or an abuse of discretion; and the written decision complied with Idaho and constitutional law. 3. The alleged ex parte activity was addressed and did not impact the City Council's decision. The next category is Petitioners' Issue 6 which involves allegations that ex parte communications which took place during the Hearing improperly influenced the City Council's decision. Pet.Br. at 29-33. IDAPA, in a provision applicable here, prohibits communication either "directly or indirectly, regarding any substantive issue in the proceeding, with any party, except upon notice and opportunity for all parties to participate in the communication." I.C. § 67 - MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 22 5253. Communication is defined as "[t]he interchange of messages or ideas by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception." Communication, BLACK'S LAw DICTIONARY (10th ed. 2014). Something is considered ex parte when it is "[d]one or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest." Ex Parte, BLACK'S LAW DICTIONARY (10th ed. 2014). Thus, ex parte communication is an interchange of messages or ideas by speech, writing, gestures, or conduct that is done or made at the instance and for the benefit of one party only, and without notice to, or argument by, anyone having an adverse interest. Before this Court can determine if there were improper ex parte communications, the Court must next determine in what capacity the City Council was sitting because "[t]he Constitution does not require all public acts to be done in town meeting or an assembly of the whole." Snake River Homebuilders Assn v. City of Caldwell, 101 Idaho 47, 49, 607 P.2d 1321, 1323 (1980) (quoting Bi -Metallic Investment Co. v. State Board of Equalization of Colo., 239 U.S. 441, 445 (1915). A city council can act in either a quasi -legislative or a quasi-judicial capacity depending on the nature of what is in front of them. See City of Coeur d'Alene v. Simpson, 142 Idaho 839, 846, 136 P.3d 310, 317 (2006) (A "governing body enacts a land use ordinance in its legislative capacity, but it considers a variance in a quasi-judicial capacity"). When a governing body is considering a "measure of general applicability, affecting" the population as a whole, this is a legislative or quasi -legislative action and the people's rights are "protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule." Bi -Metallic, 239 U.S. at 445. On the other hand, when that same body is considering a measure that would apply "general rules or policies to specific individuals, interests, or situations," that is a quasi-judicial action over which judicial review is appropriate. Cooper v. Bd. of Cty. Commis of Ada Cry., 101 Idaho 407, 410, 614 P.2d 947, 950 MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 23 (1980). The public is protected by the requirement that when "a governing body sits in a quasi- judicial capacity, it must confine its decision to the record produced at the public hearing." Idaho Historic Preservation Council, Inc. v. City of Boise, 134 Idaho 651, 654, 8 P.3d 646, 649 (2000) (citations omitted). Thus, if a governing body is sitting in a quasi-judicial capacity, there is a restriction on ex parte communications; but if the same body is sitting in a quasi -legislative capacity, that restriction does not apply. The requirement in quasi-judicial proceedings to confine the decision to the record is to prevent improper influence on the decision and ensure "opposing parties [have] an opportunity to rebut the substance of any ex parte communications." Eacret v. Bonner Cty., 139 Idaho at 786, 86 P.3d at 500; See also Idaho Historic Preservation Council, Inc, 134 Idaho at 653, 8 P.3d at 648. In Idaho Historic Preservation Council, before a scheduled hearing, City Council members had "received numerous telephone calls concerning" an application at issue. Idaho Historic Pres. Council, Inc., 134 Idaho at 653, 8 P.3d at 648. In Eacret, one of the County Commissioners met privately with the applicant "concerning the variance at issue." Eacret, 139 Idaho at 787, 86 P.3d at 501. The Court in Idaho Historic Preservation Council determined there was inadequate disclosure of councilmembers' telephone conversations outside of the public hearing "because of the City Council's failure to sufficiently identify the callers and provide a general description of what they said." Idaho Historic Pres. Council, Inc., 134 Idaho at 656, 8 P.3d at 651. The Court in Eacret determined that the Commissioner's communications revealed "a lack of impartiality and denial of an opportunity for opponents of the variance to challenge or answer the ex parte evidence." Eacret, 139 Idaho at 787, 86 P.3d at 501. Here, in contrast, the alleged ex parte activity consisted of City Councilmember Ty Palmer looking at Google Maps results of other Costcos located close to residential areas during the hearing. Pet.Br. at 31. He had not done this research before the hearing, and only brought it MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 24 up in direct response to a statement made by a member of the public who brought it up during her testimony. (Tr. 241-243). After that testimony and disclosure by Councilmember Palmer, the public had an opportunity to respond to his use of Google Maps and rebut that information. One member of the public specifically discussed Councilmember Palmer's Google Maps use and agreed with his statements. (Tr. 250). Most importantly, however, is the fact that all three Petitioners, and Petitioner's counsel, testified after this disclosure and subsequent conversation, yet none objected to Councilmember Palmer's Google Maps internet search when given that opportunity. See Tr. 340-343 (Petitioner's Counsel), Tr. 347 (Petitioner Neufeld), Tr. 347-348 (Petitioner Reyes), Tr. 350-351 (Petitioner Burke). The alleged ex parte communication was not actually ex parte as alleged by Petitioners. While Councilmember Palmer did use Google Maps, he used it in response to a citizen's testimony. He fully communicated and disclosed his use to the public attending the hearing almost instantaneously with that use. The public then had an opportunity to respond to that use. There was at least one response directly addressing it during the hearing which means Councilmember Palmer engaged "in [an] interchange of messages or ideas by speech, writing, gestures, or conduct" regarding his use of Google Maps. Petitioners had an opportunity to engage in a similar interchange regarding his use of Google Maps, but they neglected to do so. Thus, Petitioners' argument regarding alleged ex parte communication fails. In addition, even if Councilmember Palmer's use of Google Maps could be considered ex parte communication, there would have been no impact on whether or not the motion for the Application's approval passed. The City Council's final vote was unanimous with all five attending members voting in favor. R. 4475. Thus, even if Councilmember Palmer's vote is disregarded, the motion to approve the application still would have passed with four votes in favor. MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 25 4. The City and City Council's actions did not violate Petitioners' substantive or procedural due process rights. The final category is Petitioners' Issue 8 and involves allegations that the City's actions violated Petitioners' substantive or procedural due process rights. Pet.Br. at 7. "The party challenging the decision of [a governing board] must not only demonstrate that the Board erred in a manner specified by I.C. § 67-5279(3) but must also show that its substantial rights have been prejudiced." Hawkins v. Bonneville Cty. Bd. of Commis, 151 Idaho 228, 232, 254 P.3d 1224, 1228 (2011) (quoting Kirk—Hughes Dev., LLC v. Kootenai Cty. Bd. of Cry. Commis, 149 Idaho 555, 557, 237 P.3d 652, 654 (2010) (in turn citing I.C. § 67-5279(4))); see also Krempasky v. Nez Perce Cty. Planning and Zoning, 150 Idaho 231, 235, 245 P.3d 983, 987 (2010), Cowan v. Bd. of Commis of Fremont Cty., 143 Idaho at 508, 148 P.3d at 1254. A party can show an infringement on its substantial rights by demonstrating that the governing board violated either its substantive or procedural due process rights. Aberdeen -Springfield Canal Co. v. Peiper, 133 Idaho 82, 90, 982 P.2d 917, 925 (1999). Petitioners argue that their substantive due process rights were violated because the City Council approved the Development in order to receive funding to widen Chinden outside of the normal legislative process. Pet.Br. at 12. Petitioners also argue that their procedural due process rights were violated because the City Council failed to adequately explain its decision in writing (Pet.Br. at 23); that it failed to provide adequate opportunities to respond (Pet.Br. at 33); and that it failed to give adequate notice for changes the City Council would be considering (Pet.Br. at 35). Each of these arguments fails and will be addressed in turn. Substantive due process under "both the United States and Idaho Constitutions" requires there be a "reasonable relationship" between the action being considered and a legitimate governmental objective. Peiper, 133 Idaho at 90, 982 P.2d at 925 (quoting In re McNeely, 119 MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 26 Idaho 182, 189, 804 P.2d 911, 918 (Ct. App. 1990)). "In this context, substantive due process means that legislation which deprives a person of life, liberty, or property must have a rational basis that is, the reason for the deprivation may not be so inadequate that it may be characterized as arbitrary." Peiper, 133 Idaho at 90, 982 P.2d at 925 (internal citations and quotation marks removed). Petitioners' argument that their substantive due process rights were violated because the City Council considered funding for the widening of Chinden as part of their decision does not satisfy those requirements. During the Planning and Zoning commission hearing, Commissioner Holland discussed the need to widen Chinden, but that it was not possible to do that within the near future without funding from outside sources because the Legislature had not provided adequate funding. Tr. 113-14. Beyond that discussion, there is no evidence in the Record that the City Council relied on that funding when it approved the Development. Thus, Petitioners have not shown their substantive due process rights were violated. Procedural due process in land use decisions requires: some process to ensure that the individual is not arbitrarily deprived of his rights in violation of the state or federal constitutions. This requirement is met when the defendant is provided with notice and an opportunity to be heard. The opportunity to be heard must occur at a meaningful time and in a meaningful manner in order to satisfy the due process requirement. Cowan, 143 Idaho at 512, 148 P.3d at 1258 (quoting Peiper, 133 Idaho at 91, 982 P.2d at 926 (internal quotations and citations omitted)); see also Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1267 (1998). In quasi-judicial proceedings such as land use decisions, procedural "due process requires: (a) notice of the proceedings, (b) a transcribable verbatim record of the proceedings, (c) specific, written findings of fact, and (d) an opportunity to present and rebut evidence." Cowan, 143 Idaho at 510, 148 P.3d at 1256 (citing Chambers v. Kootenai Cty. Bd. of Commis, 125 Idaho 115, 118, 867 P.2d 989, 992 (1994)). Petitioners allege that MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 27 insufficient notice was given of the request to amend the comprehensive plan (Pet.Br. 43); that the written Decision was inadequate (Pet.Br. 23-28); and that Petitioners were not given sufficient opportunity to respond to or rebut alleged ex parte communications (Pet.Br. 29-33) or the Applicant's rebuttal remarks (Pet.Br. 33-35). Petitioners' argument regarding insufficient notice is not supported by the record. As discussed above, LLUPA requires that notice be given to property owners whose land adjoins the proposed development. I.C. § 67-6521(1)(a). Meridian's City Code requires that notice be given to all property owners who live within 300 feet of the proposed development. UDC § 11 -5A - 6(E)(2). The hearings on the Development were also published in the paper. Moreover, not all actions require formal, advance notice if notice has been given and a public hearing has already occurred. I.C. § 67-6509(a). Meridian City Code does not require any specific application, notice, or other process for the Council to consider and apply a modification to its standards. MCC § 11-3H-3. Regardless, notice of the modification of the comprehensive plan amendment was articulated in writing and made available prior to the Commission Hearing on the City Clerk's website. R. 260-66. As discussed in Section A.3. above, none of the Petitioners live within the radius where they were required to receive notice; however, the fact that Petitioners were present at the City Council meeting and provided both written and oral testimony is sufficient for this Court to determine that adequate notice was both given to and received by Petitioners as required under both LLUPA and Meridian City Code. Next, Petitioners argue that the written Decision was inadequate and conclusory. (Pet.Br. 23-28, 43). LLUPA requires that a written decision be "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." I.C. § 67-6535(2). Here, the City Council's written Decision incorporates by reference both the voluminous ITD report (R. 352-1096) and an MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 28 expansive Staff Report (R. 3081-3150). The Court agrees with the City that Petitioners argue, without citation to any legal precedent, that written findings that incorporate language by reference are insufficient. Resp.Br. 34 (citing Pet.Br. 18). While the Court understands that manner in which the Decision's incorporated the Staff Report is a bit confusing, the written findings do explain what criteria and standards the City Council found relevant, which facts were relied upon, and contains sufficient rationales for those decisions. Thus, the Court finds that the City Council's written report sufficiently meets LLUPA's requirements for a written decision. Finally, Petitioners allege that they were not given sufficient opportunity to respond to or rebut alleged ex parte communications (Pet.Br. 29-33) or the Applicant's rebuttal remarks (Pet.Br. 33-35). As discussed above in section B.3., Petitioners had an opportunity to respond to the alleged ex parte communications, but did not take that opportunity to do so. In addition, the allegation that they were not given sufficient time to respond to Applicant's rebuttal remarks is likewise without merit. The Applicant was permitted to present rebuttal remarks based upon concerns raised during the public testimony. Resp.Br. 21-22. Even though there was no requirement to do so, the public was again given an opportunity to give testimony regarding any "clarifying questions" they wished to have answered in response to that discussion. Resp.Br. 22, citing Tr. 330-351. In addition, Petitioners filed a request for reconsideration that was heard and acted upon by the City Council. R. 4550-51 (Request for Reconsideration); R. 4557-66 (Relevant Minute Book Entries from City Council Meeting regarding Petitioner's Request for Reconsideration); R. 4567-68 (Written Decision on Request for Reconsideration). Thus, Petitioners' argument that they were not given sufficient opportunity to respond is not supported by the record and is rejected by this Court. MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 29 5. Petitioners have failed to carry their burden for judicial review to overturn the City Council's decisions on the variance and preliminary plat. The fact Petitioners have reasons they disagree with the decision the City Council reached on the Application for the Development is understandable. But Petitioners have not carried their burden to show the City and City Council's actions that are subject to judicial review were not based on sufficient evidence or were unlawful. Further, the Court finds no ex parte communication occurred, and Petitioners' substantive and procedural due process rights were not violated. For these reasons, Petitioners' challenges to the approval of the Development are denied as they have not shown a violation of any substantial right. Attorney Fees Each of the parties has asked for costs and attorney fees to be awarded. The Court finds Petitioners are not prevailing parties and, therefore, are not entitled to an award of costs and fees. Respondent City argues it should be awarded attorney fees under Idaho Code § 12-117(1) because it alleges that Petitioners are not be the prevailing party and filed the request without a reasonable basis in fact or law. City of Osburn v. Randel, 152 Idaho 906, 910, 277 P.3d 353, 357 (2012) (articulating two-part test for award under I.C. § 12-117). Intervenors maintain they should be awarded attorney fees for the same reasons, but also as sanctions under I.A.R. 41 and 11.1 and I.R.C.P. I I(b). Intervenors allege the court is not required to find that Petitioners filed with an improper purpose. Flying A Ranch, Inc. v. Bd. of Cty. Commis for Fremont Cty., 156 Idaho 449, 454, 328 P.3d 429, 434 (2014); see also Haight v. Idaho Dept of Transp., 163 Idaho 383, 414 P.3d 205, 215 (2018) (finding appeal frivolous and awarding fees under I.A.R. 11.2 because appellant's "claims are not well grounded in fact, nor are they warranted by existing law"); Smith v. Washington Cty. Idaho, 150 Idaho 388, 391, 247 P.3d 615, 618 (2010) (Under Idaho Code § 12-117(1), the Court shall award "reasonable attorney's fees, witness fees and MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 30 other reasonable expenses, if it finds that the nonprevailing party acted without a reasonable basis in fact or law") (emphasis added). The Court agrees based on the 2012 amendment to I.C. § 12-117, attorneys fees, witness fees and other reasonable expenses can be awarded on petitions for judicial review which is an appeal of a final agency action. Sanders v. Board of Trustees of Mountain Home School Dist. No. 193, 156 Idaho 269, 322 P.3d 1002 (2014). In this case, the Court finds the award of attorneys fees is not warranted as the second part of the test under § 12-117 has not been satisfied. Specifically, the Court does not find the Petitioners acted without a reasonable basis in fact or law. Petitioners' arguments challenging the City Council's decision were denied, but the Court does not find that such arguments were without a reasonable basis in fact or law. For this same reason, the Court finds that attorneys fees or sanctions under I.A.R. 41, I.A.R. 11.24 or I.R.C.P. I I (b) are also not appropriate in this case. Costs are awarded to Respondent and Intervenors as prevailing parties pursuant to I.A.R. 40(a). Conclusion Petitioners have standing to challenge the City Council's decision. While their properties are neither adjoining nor adjacent to the proposed development, they have provided some evidence supported by the facts in the record describing how their properties will potentially be negatively impacted by this Development. However, only some of the City Council's actions are available for judicial review. Of the reviewable actions, Petitioners have not shown how the City Council's actions of approving a variance and the preliminary plat impacted any of their substantial rights. Thus, the Petition for Judicial Review is DENIED. 4 Intervenors cited I.A.R. 11. 1, but the Court finds the appropriate appellate rule for attorneys fees as sanctions would be pursuant to 11.2. MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 31 entry. Counsel for the City is to file a proposed judgment with the Court for its review and IT IS SO ORDERED. Dated this"� ay of February, 2019. NANCY A. BASKIN District Judge MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 32 CERTIFICATE OF MAILING I hereby certify that on the ay of February, 2019, I caused a true and correct copy of the foregoing document to be served by the method indicated below, and addressed to the following: Andrea D. Carroll CARROLL LAW, PLLC P.O. Box 2006 Boise, ID 83701 Bill Nary Emily Kane Meridian City Attorney's Office 33 E. Broadway Ave. Meridian, ID 83642 Deborah Nelson Jeffrey Bower GIVENS PURSELY, LLP 601 W. Bannock St. Boise, ID 83702 ( ) U.S. Mail, Postage Prepaid ( ) Certified Mail/Return Receipt ( ) Hand Delivered ( ) Facsimile (X) Email adc@idahopropertylaw.com ( ) U.S. Mail, Postage Prepaid ( ) Certified Mail/Return Receipt ( ) Hand Delivered ( ) Facsimile (X) Email bngagmeridiancity.org ekanegmeridiancity.org ( ) U.S. Mail, Postage Prepaid ( ) Certified Mail/Return Receipt ( ) Hand Delivered ( ) Facsimile (X) Email den@givenspursley.com jeffbowerg ig venspursley.com �e���caaea��8g� ®®� StsDIC, "'°THIL MCGRANE of the Distri 0 r �a deputy lerk e« o ,uSy� MEMORANDUM DECISION AND ORDER ON PETITION FOR JUDICIAL REVIEW - PAGE 33