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Home My WebLink About2020-07-27 Frank Marcos - questions to City Attorney Charlene Way From:Bill Nary Sent:Monday, July 27, 2020 11:43 AM To:Frank Marcos Cc:Robert Simison; Brad Hoaglun; Jessica Perreault; Luke Cavener; Joe Borton; Treg Bernt; Liz Strader; Mike and Malissa Bernard; City Clerk Subject:RE: Delano Reconsideration Letter - May 19, 2020 Mr. Marcos; The Council’s decision to re-hear the matter is final and unappeasable. The entire decision and process th regarding the Delano project may be requested for Judicial Review to the 4 District Court. Any affected party, after the final decision is made, along with Findings of Facts, Conclusions of Law, and Decision are approved by the City Council may seek that remedy. The Idaho Code - Local Land Use Planning Act under Title 67, Chapter 65 is your guide on how to proceed if that is the direction that any affected party wishes to seek Judicial Review. Bill Nary | City Attorney & Risk Manager City of Meridian | City Attorney’s Office 33 E. Broadway Ave., Meridian, Idaho 83642 Phone: | 208-898-5506 Built for Business, Designed for Living All e-mail messages sent to or received by City of Meridian e-mail accounts are subject to the Idaho law, in regards to both release and retention, and may be released upon request, unless exempt from disclosure by law. From: Frank Marcos <alpinepointenwp@gmail.com> Sent: Sunday, July 26, 2020 5:56 PM To: Bill Nary <bnary@meridiancity.org> Cc: Robert Simison <rsimison@meridiancity.org>; Brad Hoaglun <bhoaglun@meridiancity.org>; Jessica Perreault <jperreault@meridiancity.org>; Luke Cavener <lcavener@meridiancity.org>; Joe Borton <jborton@meridiancity.org>; Treg Bernt <tbernt@meridiancity.org>; Liz Strader <lstrader@meridiancity.org>; Mike and Malissa Bernard <mmbernard1@msn.com>; City Clerk <CityClerk@meridiancity.org>; Frank Marcos <alpinepointenwp@gmail.com> Subject: Re: Delano Reconsideration Letter - May 19, 2020 Mr. Nary, Regarding your response of June 25, 2020 to my letter of June 23, 2020, concerning the reconsideration letter from Mr. Clark in the Delano application, I am respectfully requesting from you what legal rights I have as a citizen of Meridian to further arbitrate my concerns about the reconsideration which was allowed to Mr. Clark. We obviously are interpreting the City Code and Law differently, thus I would request what further means does the City of Meridian offer its citizens to be properly heard when there is a difference of opinion on the law. Mr. Clark provided additional testimony and a new plan at the Council meeting which was supposed to be for the reconsideration only. 1 It was a direct conflict of A6 of the City Code....A6 specifically states that "No additional evidence or testimony will be allowed at the City Council meeting." When one reviews the video and minutes of the City Council's discussion on June 9, 2020 of the Letter of Reconsideration, there was NO discussion among council members about any deficiency regarding their previous decision to deny the application. Instead, the members actually discussed the additional proposal (violation of A6 of the Meridian Code for Reconsideration) made by Mr. Hethe Clark in his letter of May 19, 2020 for another option for the applicant. According to the City Code, the City Council's discussion should have strictly adhered to a discussion of a deficient decision, not consideration of another proposal. In essence, the applicant found another way to submit a new proposal without following proper procedures for a denied application. Respectfully, Frank Marcos 2580 E. Lacewood Dr Meridian, ID 83646 On Thu, Jun 25, 2020 at 4:22 PM Bill Nary <bnary@meridiancity.org> wrote: Mr. Marcos; We are going to have a disagree here. Mr. Clark properly requested the City Council Reconsideration on the Delano project. The standard in the Idaho Code ( IC 67-6535(2)(b)) and the Meridian City Code (MCC 1-7- 10) are the same. The requester must identify “specific deficiencies” in the decision as a basis for reconsideration. Mr. Clark stated that he was disadvantaged because a Councilmember had not stated his concerns about connectivity and timing of the phasing prior to the close of the public hearing. He was not stating that he wasn’t allowed to speak an additional time, but that his due process opportunity to be heard was impacted by the Council’s actions. The standard for “specific deficiency” is a low standard and is undefined in the Code. It is a lesser standard than a legal error. The City Council has the discretion to accept or reject that basis for the request. If they accept the basis for the request they have the discretion to then hear the matter again after proper noticing has been done. The Council did accept Mr. Clark’s request as valid basis to consider the matter again. They did not determine that any legal error had occurred. The Council could have granted his request and set it for another hearing or denied his request. They granted a new hearing. The information in the request is allowed by statute and ordinance. The only prohibition is that no new testimony is taken at a City Council hearing. A written submittal is allowed. All of these actions are within the purview of the City Council and therefore the matter will proceed when it is noticed for hearing. Please feel free to contact me if you wish to discuss. Bill Nary | City Attorney & Risk Manager City of Meridian | City Attorney’s Office 33 E. Broadway Ave., Meridian, Idaho 83642 Phone: | 208-898-5506 Built for Business, Designed for Living 2 All e-mail messages sent to or received by City of Meridian e-mail accounts are subject to the Idaho law, in regards to both release and retention, and may be released upon request, unless exempt from disclosure by law. From: Frank Marcos <alpinepointenwp@gmail.com> Sent: Tuesday, June 23, 2020 5:53 PM To: Bill Nary <bnary@meridiancity.org> Cc: Robert Simison <rsimison@meridiancity.org>; Brad Hoaglun <bhoaglun@meridiancity.org>; Jessica Perreault <jperreault@meridiancity.org>; Luke Cavener <lcavener@meridiancity.org>; Joe Borton <jborton@meridiancity.org>; Treg Bernt <tbernt@meridiancity.org>; Liz Strader <lstrader@meridiancity.org>; Frank Marcos <alpinepointenwp@gmail.com>; Mike and Malissa Bernard <mmbernard1@msn.com>; City Clerk <CityClerk@meridiancity.org> Subject: Delano Reconsideration Letter - May 19, 2020 Thank you for the City Code on Reconsideration. I would like to bring to your attention several facts regarding this Reconsideration letter that may lead to further (public and legal) review of the City Council's actions. Mr. Hethe Clark, attorney for the Delano application, submitted the Letter of Reconsideration on May 19, 2020. Within his letter, Mr. Clark references that the decision of the City Council not to bring up a discussion item prior to the closing of public testimony, could have resulted in a decision that is legally suspect. He then continues to provide additional testimony towards a new proposal within his letter of Reconsideration. This additional information should not have been considered in the City Council's discussion of the Reconsideration Letter during their Council meeting on June 9, 2020. This additional proposal by Mr. Hethe is tantamount to filing a new application without actually having done so. The Meridian City Code (1-7-10: Procedure for Request for Reconsideration) explicitly states that "Pursuant to Idaho Code 67-6535, regarding a request for reconsideration of a City Council land use decision the following procedure must be strictly followed. A3 of the Code states that the request must identify specific deficiencies in the decision for which reconsideration is sought. In Mr. Clark's May 19, 2020 letter, there are no specific deficiencies listed except that the applicant was not allowed time to provide additional testimony AFTER the public testimony was closed. That's not a deficiency, that's how the system works. Once the public testimony is closed, neither the applicant nor residents of Meridian are allowed additional testimony. Based on this simple fact, there was no deficiency in the City Council's decision to deny the application. Also, A6 specifically states that "No additional evidence or testimony will be allowed at the City Council meeting." When one reviews the video and minutes of the City Council's discussion on June 9, 2020 of the Letter of Reconsideration, there was no discussion about any deficiency regarding their previous decision to deny the application. Instead, the members actually discussed the additional proposal (violation of A6 of the Meridian Code for Reconsideration) made by Mr. Hethe Clark in his letter of May 19, 2020 for another option for the applicant. According to the City Code, the City Council's discussion should have strictly adhered to a discussion of a deficient decision, not consideration of another proposal. In essence, the applicant found another way to submit a new proposal without following proper procedures for a denied application. 3 Based on this evidence of a faulty decision of Reconsideration, I respectfully request the City's attorney to make a decision not to proceed with allowing Mr. Clark another chance to propose a new option, which is in direct violation of the City Code for denied applicants. Anything short of this, will be considered a violation of procedures for City Council actions and member discussions. Respectfully, Frank Marcos 2580 E. Lacewood Dr Meridian, ID 83646 909-539-7001 4