CC - Applicant's Supplemental Submittal to City re Development Agreements (10-18-19)Geoffrey M. Wardle
(208) 388-3321
gwardle@clarkwardle.com
Via Email
October 18, 2019
Meridian City Clerk (cityclerk@meridiancity.org)
33 E. Broadway Avenue, Suite 104
Meridian, Idaho 83642
Kevin Homes, Associate Planner (kholmes@meridiancity.org)
City of Meridian, Suite 102
33 E. Broadway Avenue
Meridian, Idaho 83642
Re:H-2019-0091, Victory Commons MDA
CW Matter No.: 23695.0
Dear Clerk and Kevin:
We represent the Applicant, BVA Development, LLC, and the Owner, Kuna Victory, LLC,
in relation to the request to modify an existing development agreement, H -2019-0091, for the project
referenced as Victory Commons. To follow up on the deferral of this matter by the City Council on
October 15, 2019, we make the following supplemental submittal.
A.Supplemental Materials and Condition
This application is supplemented as follows:
1.Recognizing the concerns that had been articulated by the Mayor and City Council at the
hearing on October 15, 2019, we enclose for reference is the current elevation of the proposed flex
buildings. It is my understanding that the Applicant has transmitted these to neighboring property
owners that had requested them previously. To clarify further, dimensional information has been
provided indicating that the parapets for the proposed flex buildings are approximately 28 feet in height
and the roofs in the rear are approximately 22 feet in height.
2.The Applicant and Owner are amenable to agreeing to a height limitation for the property as
part of this amended development agreement. The existing C -G zoning designation for the property
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H-2019-0091, Victory Commons MDA
October 18, 2019
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establishes the maximum building height of sixty five (65) feet. We propose the following additional
condition be included in the development agreement in the conditions set forth Section VIII, that
provides as follows:
CONDITIONS COVERING DEVELOPMENT OF SUBJECT PROPERTY:
5.1 Owner/Developer shall develop the Property in accordance with the
following special conditions:
. . .
14.No building on the property shall have a maximum building height
that exceeds 40 feet, measured in accordance with UDC 11-1-5B(1).
We believe that this is a reasonable compromise in light of the fact that the existing
development agreement, as amended, imposes no additional limitation on maximum building heights.
The existing R-4 zoning designation for the residential properties to the east establishes the maximum
building height of thirty five (35) feet. The proposed height limitation of forty (40) feet is consistent with
the allowable building height above grade plane under Chapter 5 of the International Building Code.
The foregoing additional condition gives the Applicant and Owner flexibility in developing the site, the
adjoining residential neighbors assurance that the height would be comparable to what would be
permitted within their neighborhood, and the City Council assurances that it will not have to revisit
building size and height.
3.Recognizing concerns regarding mechanical systems on the roofs, the Applicant is also
amenable to ensuring that such mechanical systems are screened consistent with Meridian’s UDC. We
propose the following additional condition be included in the development agreement in the conditions
set forth Section VIII, that provides as follows:
CONDITIONS COVERING DEVELOPMENT OF SUBJECT PROPERTY:
5.1 Owner/Developer shall develop the Property in accordance with the
following special conditions:
. . .
15.Outdoor mechanical equipment shall be installed consistent with UDC
11-3A-12.
B.Supplemental Analysis.
In light of the foregoing we provide certain additional analysis in support of our clients’
application.
Supplemental Submittal
H-2019-0091, Victory Commons MDA
October 18, 2019
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1. Existing Development Agreement Permits the Proposed Structures.
First, it is important to note that this property was annexed in 2004 and zoned C-G at that time
subject to a development agreement. The then existing comprehensive plan had contemplated
commercial development at this site since at least 2002. The 2006 amendment to the development
agreement incorporated certain additional changes to the development standards applicable to the
property. They did not impose any height limitation.
Pursuant to the 2006 amendment to the development agreement, the Owner could in fact
construct buildings that were sixty five (65) feet in height with no further approvals, if such had “sloped
metal roofs, with overhanging eaves that are supported by posts” and met certain other requirements
regarding materials. The only dimensional limitations under the 2006 amendment to the development
agreement imposed limitations on maximum building footprints.
2. Consideration of Views are Irrelevant to this Application.
Next, to the extent that concerns were expressed regarding the impact upon views from
property to the east, Idaho does not recognize the “right to a view” or the right to be free from visual
obstructions under either its common or statutory law. Idaho neither recognizes a right to a “view”
absent an obligation created by contract or regulation, nor does Idaho recognize any legal basis to
object to the construction of a structure solely on the basis of its aesthetics, except to the extent
recognized in the statutes and case law.
The limitations that have been recognized as to the type and configuration of structures that can
be constructed on property, are very narrow and are inapplicable in this instance due to the long
existing zoning. The first restriction on the construction of a structure on property arises from Idaho’s
statutorily created cause of action for nuisance. In Idaho Code § 52-101, a “nuisance” is defined as:
Anything which is injurious to health or morals, or is indecent, or
offensive to the senses, or an obstruction to the free use of property, so
as to interfere with the comfortable enjoyment of life or property, or
unlawfully obstructs the free passage or use, in the customary manner,
of any navigable lake, or river, stream, canal, or basin, or any public
park, square, street, or highway, is a nuisance.
It is unlikely that in light of Idaho’s definition of nuisance that construction of commercial buildings that
comply with the underlying zoning standards could ever constitute a use that is so offensive that it
would “interfere with the comfortable enjoyment of life or property.”
The second restriction on the type and configuration of structure on property arises from a
series of decisions by Idaho’s courts regarding “unsightly” structures. In White v. Bernhart, 241 P. 367,
368 (1925)(modified in part by Sundowner, Inc.v. King), the Idaho Supreme Court held that:
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The fact that [a structure] is unsightly or out of harmony in construction
with adjacent buildings, and therefore not pleasing to the eye would not
make it offensive to the senses … so as to warrant a holding that the
building is a nuisance…
(Emphasis added). The fundamental holding remains unchanged today. In Sundowner, Inc., v. King, 95
Idaho 367, 39 (1973), the Idaho Supreme Court modified White slightly:
“. . . no property owner has the right to erect and maintain an otherwise
useless structure for the sole purpose of injuring his neighbor. . . . The
rule announced herein is applicable only to structures which serve no
useful purpose and are erected for the sole purpose of injuring
adjoining property owners.”
(Emphasis added.) Constructing a commercial building on a commercially zoned property does not fall
within the narrow limitations of either White or Sundowner.
3.The Existing Provisions of the UDC Govern this Application.
Finally, it is well established in Idaho that the rights of an applicant for a land use permit or
rezoning of property are determined by the ordinance in existence at the time of filing an application for
such. Payette River Property Owners Ass'n v. Board of Comm'rs of Valley Co., 132 Idaho 551, 555, 976
P.2d 477, 481 (1999). As noted by the Idaho Supreme Court in Ready-to-Pour, Inc. v. McCoy, 95 Idaho
510, 513, 511 P.2d 792, 795 (1973) " the applicant's rights are measured under the law in effect at the
time of the application." All applicants have a clearly recognized right to have their land use applications
evaluated and measured under the ordinances in effect at the time of initial application. Payette River,
132 Idaho at 556, 976 P.2d at 482.
In this instance, the flex space proposed on a portion of the property is absolutely use permitted
by right in the C-G zone, UDC Table 11-2B-2; the maximum height of any building in the C-G zone is sixty
five (65) feet, UDC 11-2B-3; and the flex space proposed on a portion of the property far exceed all
setback requirements. Our clients are well versed in Meridian’s UDC and can assure staff and the City
Council that all specific use standards relating to flex space set forth in UDC 11-4-3-18 will be satisfied
and complied with.
C.Conclusion
The Applicant and Owner are in agreement with the staff report and recommended conditions
of approval. In order to address the concerns raised on October 15,2019, the Applicant and Owner are
amenable to the incorporation of the attached elevations in the development agreement, and to the
inclusion of the additional conditions set forth above limiting the height of buildings on the property to
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H-2019-0091, Victory Commons MDA
October 18, 2019
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forty (40) feet and requiring screening and installation of mechanical equipment consistent with the
UDC. We request your approval of this application.
Sincerely,
Geoffrey M. Wardle
Enclosure
CC: J. Thomas Ahlquist
Tonn Peterson