Z - Request for Reconsideration - Applicant's Response1
Charlene Way
From:Tina Shull <TShull@hawleytroxell.com>
Sent:Tuesday, March 12, 2019 2:53 PM
To:Meridian City Clerk
Cc:Bill Nary; Ken Howell; Brian Ballard
Subject:Linder Village – AZ PP, VAR (H-2017-0088) / Applicant Response to Requests for
Reconsideration [IWOV-IMANAGE.FID657957]
Attachments:11776362_1_2019.03.12 Response to Requests for Reconsideration.PDF
Please see attached response to the Requests for Reconsideration submitted February 19, 2019. Thank you.
________________________________
TINA SHULL
Legal Assistant to Kenneth C. Howell, Richard G. Smith,
Brian Ballard, Cydni Waldner, Dana Hofstetter and
Andrea J. Rosholt
direct 208-388-4839
fax 208-954-5264
email tshull@hawleytroxell.com
HAWLEY TROXELL
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March 12, 2019
VIA EMAIL
City of Meridian
Mayor and City Council Members
33 East Broadway Avenue
Suite 300
Meridian, ID 83642
RE: Linder Village — AZ PP, VAR (H-2017-0088)
Applicant Response to Requests for Reconsideration
Dear Mayor and Council Members:
.A.7117170RN:H,YS AND COUNS:EI,ORS
Hawley Troxell Ennis & Hawley LLP
877 Main Street, Suite 1000
P.O. Box 1617
Boise, Idaho 83701-1617
208.344.6000
www.hawleytroxell.com
Applicant provides this response to the Requests for Reconsideration submitted February
19, 2019) by (i) Andrea Carroll on behalf of a coalition organized as "Protect Meridian" and (ii)
individuals under the signature line byname "Neighbors for a Better Linder Village" ("NBLV")
(individually, "Requestor" and collectively "Requestors").
It is the positon of Applicant that the Findings of Fact and Conclusions of Law and Order
("Findings") (which include the Staff Report attached and incorporated):
(i) provide the written reasoned statement required under Idaho Code § 67-6535;
(ii) explain the criteria and standards considered relevant;
(iii) state the relevant contested facts relied upon;
(iv) explain the rationale for the decision based on the applicable provisions of the
Comprehensive Plan, the Unified Development Code ("UDC"), other relevant
ordinance and statutory provisions, pertinent constitutional principles and factual
information contained in the record; and
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(v) set forth a decision of the City Council founded upon sound reason and practical
application of recognized principles of law.
Applicant addresses each of the Requests, using the same headings as appear in each of
the Requests, in order, as follows:
REQUEST #1 - SUBMITTED BY PROTECT MERIDIAN (ANDREA CARROLL)
I. Variance Criteria
Early on, Applicant submitted into the record specific and precise reference to UDC § I I -
3H-3 and the authorization given thereunder for the City Council to "consider and apply
modifications to the standards of this article upon specific recommendation of the Idaho
transportation department." Applicant also made recommendations of findings and conclusions,
with specific reference to UDC § I1-31-1-3 and its importance in consideration of the variance
under UDC § 11-513-4. Applicant Position Statement and Supplemental Letters, dated October
191 2017, and November 14, 2017.
UDC § 11-31-1-3 gives the City Council the specific authority to modify its standards for
highway access based upon an ITD recommendation, which the Council may do as it deems
appropriate, including modifying its standards to take note of an ITD recommendation and/or to
determine that, in light of that recommendation, a variance is not necessary.
ITD made its recommendation. The City Council then took two actions:
First, the Council granted the variance. In doing so, the Council set forth in its findings
and conclusions the specific reasoning for granting the variance, as clearly appears in the
incorporated Staff Report. The Council specifically articulated the required findings, the
facts used, and the conclusions reached - all in precise alignment with Idaho Code § 67-
6516 and UDC § 11-513-4.
Second, the "City Council also found that under UDC 11-31-1-3, even without approval of
a Variance for access to SH 2O-26, access can be granted upon specific recommendation
of the Idaho Transportation Department. Either way, Council approval of the access was
found to be appropriate for this development and was approved." Staff Report, page 27.
II. Findings Insufficient with LLUPA and Due Process Requirements.
Insufficiency
Idaho Code § 67-6535(2)(b) specifically provides that (i) before an affected person may
seek judicial review, that person must first seek reconsideration of the final decision within 14
days, (ii) the request must be in writing, and (iii) the written request "must identify specific
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deficiencies in the decision" (emphasis added). Further, UDC 1-7-10 emphasizes that Idaho Code
§ 67-6535 must be strictly followed.
Requestor broadly and generally asserts only that the Council's "findings are conclusory
and do not explain the factual basis." Requestor does not identify with any specificity the
deficiencies in any of the criteria, standards, facts and rationale as set forth in the decision.
Rather, Requestor relies only on its general and nonspecific allegations, and concludes by saying
that the Request is "a good -faith effort to identify the potential procedural and legal error that
could be the basis for judicial review..." Protect Meridian Request for Consideration, page 3
(emphasis added).
A request for reconsideration is a statutorily narrow reconsideration of the clarity of
criteria, standards, facts and rationale applied in a decision, and its focus is upon specifically
identified deficiencies in the decision. It is Applicant's position that the decision of the City
Council as expressed in writing in the Findings (including the incorporated Staff Report), does,
in fact, comprise the "reasoned statement" required by Idaho Code § 67-6535, and adequately
and sufficiently explains the criteria, sets out the relevant facts and explains the rationale for the
decision.
Due Process
Whereas specific deficiencies in the decision may be identified in a request for
reconsideration, Idaho Code § 67-6535 (2)(b) specifically restricts itself to "compliance with the
provisions of this section" I.C. § 67-6535 (emphasis added); I.C. § 67-6535 does not expand
what may be included in a request for consideration beyond that. Procedural and due process
constitutional issues unrelated to "specific deficiencies in the decision" are beyond the scope of
what is statutorily permissible to assert in a request for reconsideration.
III. Conditional Use Permit Required.
The City Council set forth in clear manner the following: "The property as -is without
being subdivided, currently abuts residential use and zoning at the south boundary of the site.
However, when the property is subdivided as proposed, it will not abut a residential district or
use; therefore, hours of operation shouldn't be restricted." Staff Report, page 18 (emphasis
added).
Requestor cites no authority that would require that the property be subdivided before the
City Council may apply UDC 11 -213-3.A.4.
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REQUEST #2 - SUBMITTED BY NBLV
I. Unclear and Undocumented Rationale of Findings
It is Applicant's position that the Findings, including the Staff Report, comprise the
reasoned statement required by Idaho Code § 67-6535(2) and provide the relevant criteria and
standards, the relevant contested facts, and adequately explain the rationale and reasons for the
decision as required under Idaho Code §§ 67-6519 and 67-6535.
The incorporated Staff Report, among other things, is an exhaustive recounting of (i) the
criteria and standards applied and how the same have been addressed, and (ii) the relevant
policies and goals of the Comprehensive Plan and how the same have been addressed.
The two examples offered by Requestor, upon closer examination of the record, do not
stand up to scrutiny:
1. With respect to the item mentioned in Request #2, concerning deletion of the requirement
that some live/work units be constructed in the first phase, Councilman Palmer clarified
with counsel for Applicant that the basis for requiring same was sound buffering, and that
such was no longer an issue, as construction of in the first phase would have "no bearing
on the sound issues." (Council Minutes, page 74 of 102) Further, Councilman Palmer
was clear in making his first motion that it included "not requiring in that first phase that
live -work - the live work structures be built" (Council Minutes, page 86 of 102), and he
was also clear in his final motion that it included all of his "previous findings and motion
details". (Council Minutes, page 96 of 102)
2. As regards the matter of traffic calming, the Staff Report clearly provides that the same
would be required and that Applicant would have to work with ACRD on "traffic
calming measures" (Staff Report, pages 4 and 14). The Minutes clearly reflect that when
Staff Planner Hood asked the Mayor if traffic calming was to be included in the motion,
Mayor De Weerd unequivocally replied, "Yes." (Council Minutes. Page 88 of 102)
II. Findings for Annexation
The Council made the findings required by UDC § 11-513-3E. This is conceded by
Requestor. See Request #2, page 3. The record discloses that these findings were more than just
mere recitations, however. The incorporated Staff Report identifies the standards and criteria
considered relevant by the Council in making its decision, as set forth not only on page 50 of the
Findings, but also throughout the Staff Report. The Staff Report itself goes into detail regarding
compliance and noncompliance with the requirements of UDC § 11-513-3. The result is the
conclusion reached that the Application was in sufficient compliance, including sufficient
compliance with applicable provisions of the Comprehensive Plan, which, it must be
remembered, is not a mandatory regulation, but is a guide only that does not supersede the
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decision making authority of the Council. See Applicant Position Statement and Supplemental
Letter, dated October 19, 2017.
Requestor refers to certain comments/reports in support of its position. For example,
Requestor cites a "Sound Study" regarding loading dock noise. The "Sound Study" is identified
in the record as the "Winco Chinden Noise Analysis", dated October 31, 2018, and entered into
the record on November 15, 2018. Requestor mentions "loading dock noise." What Requestor
fails to mention is that (i) the noise was observed at another Winco store; (ii) the adjusted noise
level numbers included "the considerable barrier effect of the store's southwest corner and the
newly increased distance to homes"; and (iii) there would be an "8 foot high screen around the
trash compactor" which would act as a "very effective very tall noise barrier for homes to the
west and south." Winco Chinden Noise Analysis, Mullins Acoustics, 10/31/2018, pp. 4-5.
Requestor also fails to mention the ultimate conclusion of the Noise Analysis:
"Since the predicted noises associated with the store will be at least 8 decibels
below typical ambient noises, we conclude that there will be no adverse noise
impact on the nearby homes. Most store noises will be inaudible versus the
ambient conditions."
Winco Chinden Noise Analysis, page 2.
Accordingly, the Findings, as a whole, evidence that the Council made a decision that
includes a reasoned statement that (i) explains the relevant criteria and standards, (ii) states the
relevant facts, and (iii) explains the rationale for its decision, as based on applicable ordinances
and statutes, pertinent constitutional principles, factual information contained in the record (e.g.,
the Winco Chinden Noise Analysis), and applicable provisions of the Comprehensive Plan in a
manner consistent with Idaho Code § 67-6535.
III. Public Hearing Process
1. As discussed earlier in this Response, the issue of an alleged due process violation in the
public hearing process is a constitutional issue separate and apart from the identification of
specific deficiencies in the decision, and is beyond the scope of that which may be properly
considered in a request for reconsideration under Idaho Code § 67-6535 and UDC 1-7-10.
2. UDC § 1-7-10-A.6 provides: "No additional evidence or testimony will be allowed at
the City Council meeting." To the extent Request 42 would seek to interject (i) additional
comments and arguments regarding items that have been closed upon the record, (ii) procedural
issues not related to a specific deficiency in the decision, and (iii) additional testimony and
evidence, Petitioner respectfully objects.
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Conclusion to this Response
Applicant requests that City Council deny both Requests for Reconsideration for the following
reasons:
1. Requestors had a full and fair opportunity to participate in all P&Z and City
Council hearings and supplement the record before it was closed; in fact,
Requestors did so participate in all P&Z and City Council hearing.
2. Requestors do not identify deficiencies in the decision with the mandatory
specificity required so as to warrant reconsideration; they lodge only a barrage of
nonspecific general complaints.
3. Requestors seek to introduce inapplicable matters not authorized for
reconsideration under Idaho Code § 67-6535 and/or not allowed for consideration
at the meeting under UDC § 1-7-10-A.6.
Thank you for your consideration of this Response.
Very truly yours,
HAWLEY TROXELL ENNIS & HAWLEY LLP
Brian L. Ballard
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