HomeMy WebLinkAboutJacksons Food Store VAR 07-002
BEFORE THE MERIDIAN CITY COUNCIL
IN THE MATTER OF THE
REQUEST FOR VARIANCE
FROM UDC 11-3H-4B2 TO ALLOW
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)
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THE CONSTRUCTION OF RIGHT )
TURN ONLY ACCESS TO N. EAGLE RD )
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FOR
JACKSON'S FOOD STORES, INC.
APPLICANT
C/C 03/13/07
Case No. V AR 07-002
FINDINGS OF FACT AND
CONCLUSIONS OF LAW AND
DECISION AND ORDER OF
DENIAL
The above entitled variance application having come on for public hearing on
February 27,2007, at the hour of7:00 o'clock p.m. at Meridian City Hall, 33 East Idaho
Avenue, Meridian, Idaho. Anna Canning, City Planning and Zoning Director for the
Planning and Zoning Department, and Jack Davis of Jackson's Food Stores, Inc.,
appeared and testified, and the City Council having duly considered the evidence and the
record in this matter therefore make the following Findings of Fact and Conclusions of
Law, and Decision and Order:
FINDINGS OF FACT
1. The notice of public hearing on the application for annexation and zoning
was published for two (2) consecutive weeks prior to said public hearings scheduled for
February 27,2007, before the City Council, the first publication appearing and written
notice having been mailed to property owners or purchasers of record within three
hundred (300') feet ofthe external boundaries ofthe property under consideration more
than fifteen (15) days prior to said hearings and with the notice of public hearings having
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND DECISION AND ORDER OF DENIAL
VARIANCE FOR JACKSON'S FOOD STORES, INe; CASE NO. V AR 07-002
PAGE 1 OF 5
been posted upon the property under consideration more than one week before said
hearing; and that copies of all notices were made available to newspaper, radio and
television stations as public service announcements; and the matter having been duly
considered by the City Council on February 27,2007, public hearing; and the applicant,
affected property owners, and government subdivisions provided services within the
planning jurisdiction of the City of Meridian, having been given full opportunity to
express comments and submit evidence.
2. There has been compliance with all notice and hearing requirements set
forth in Idaho Code 9967-6509 and 67-6511, and 9 II-SA, Municipal Code of the City of
Meridian.
3. The City Council takes judicial notice of its zoning, subdivisions and
development ordinances codified at Title 11, Municipal Code of the City of Meridian,
and all current zoning maps thereof, and the Amended Comprehensive Plan ofthe City of
Meridian adopted August 6, 2002, Resolution No. 02-382, and maps and the ordinance
Establishing the Impact Area Boundary.
4. The property is generally located at 3291 E. Pine Street, Meridian, Idaho,
(Lot 1, Block 1, Pork Park Subdivision No.1) in the SW 1,4 of Section 9, Township 3
North, Range 1 East, Boise Meridian, Ada County, Idaho.
5. Jackson's Food Stores, Inc., whose address is P.O. Box 610, Meridian,
Idaho 83642, is the current property owner and the applicant.
6. The Applicant requests a variance from UDC 11-3H-4B2, which prohibits
direct access to a state highway, to allow construction of a right-turn only direct access to
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND DECISION AND ORDER OF DENIAL
VARIANCE FOR JACKSON'S FOOD STORES, INC; CASE NO. V AR 07-002
PAGE 2 OF 5
N. Eagle Road. The property which is the subject ofthis application is within the City of
Meridian.
CONCLUSIONS OF LAW
1. The City of Meridian shall exercise the powers conferred upon it by the
"Local Land Use Planning Act of 1975," codified at Chapter 65, Title 67, Idaho Code
(I.C. 967-6503).
2. The Meridian City Council shall apply the standards listed in Idaho Code
967-6516 and all the findings listed in Section 11-5B-4.E of the UDC to review the
variance request. In order to grant a variance, the Council shall make the following
findings:
a. The Variance shall not grant a right or special privilege that is not
otherwise allowed in the district.
b. The variance relieves an undue hardship because of characteristics of the
site.
c. The variance shall not be detrimental to the public health, safety and
welfare.
3. Due consideration has been given to the comment(s) received from the
governmental subdivisions providing services in the City of Meridian planning
jurisdiction.
4. That this denial is in accordance with the attached Staff Report for the
hearing date of February 27,2007, incorporated by reference.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND DECISION AND ORDER OF DENIAL
VARIANCE FOR JACKSON'S FOOD STORES, INC; CASE NO. V AR 07-002
PAGE 3 OF 5
DECISION AND ORDER
NOW, THEREFORE, BASED UPON THE ABOVE AND FOREGOING
FINDINGS OF FACT AND CONCLUSIONS OF LAW, the City Council does hereby
order and this does order:
That the application for annexation and zoning is denied for the following
reasons:
The proposed variance request does not meet the burden as set forth in Idaho
Code 967-6516 and all the findings listed in Section 11-5B-4.E of the UDC.
By action of the City Council at its regular meeting held on the 20""" day of
March, 2007.
DATED:
MOTION:
APPROVED:
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND DECISION AND ORDER OF DENIAL
VARIANCE FOR JACKSON'S FOOD STORES, INC; CASE NO. V AR 07-002
PAGE 4 OF 5
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Copy served upon Applicant, the Plannirtg , ~f>>pft-1Jepartment, Public Works
Department, and City Attorney.
By:
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./1 v[JJ rYl~;41~
City Clerk's Office
Dated: 03-22-07
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND DECISION AND ORDER OF DENIAL
VARIANCE FOR JACKSON'S FOOD STORES, INC.; CASE NO. V AR 07-002
PAGE 5 OF 5
FEB 2 r 2007
` 8920698 rra it' City ofMeridiatt
- Rt;BERT L. TRABERT�.Ci�CfMerid in
Chief Legal Counse _ rr."Fp
PATRICK ;q. FANNING -
STEVEN M. PARRY APR 2 : 19d,
Attorneys !OFAJ
Idaho T.ansportati"on Department Byr-�a!CCACDA, Ct rs
P.O. Box 7129 CC F,57ti�.�uk
ccaurr
Boise, Idaho 83707-1129
Telephone: (208) 334-8815
IN THE DISTRICT COURT OF THE FOURTH JUDI-2IAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA
THE STATE OF IDAHO, ex ref, )
JOHN M. OHMAN, MARION )
DAVIDSON and PHIL BATT, )
IDAHO TRANSPORTATION BOARD, )
Plaintiff, )
-vs- )
)
JOHN DOBARAN and ARVELLA )
DCOARAN, husband and wife;
and JOE DOBARAN, a single )
man,
Defendants
Case No. 91481
SECOND JUDGMENT AND DECREE
OF CONDEMNATION
THIS COURT on the 11 �hday Of April, P 1989, having entered
Judgment adjudging that the Defendants have and recover lercin the
State of Idaho the sum of Fourteen Thousand Five Hundred Fifty -One
and 86/100 Dollars ($14,551.86), including interest and costs of
suit, and the Plaintiff having fully satisfied said judgment;
NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:
1• That the use to which the property condemned herein, and
hereinafter described, gill be
Put. to -wit, a public highway, is 3
r -blic use and authorized by law.
r (,
Si;COND JUDGMENT AND DECREE
OF CONDEMNATION - I
EXHIBIT
N.
2. ' That the taking of the property and property right_
condemned herein, and hereinafter described, is necessary to and
for the construction of that certain public highway known as State
Highway No. 55, Project Uo. F-FR-3271(44).
' 3. That the hereinafter
described property and property
ty
rights be, and the same are condemned and taken by and for the use
of the State of Idaho.
4. That the property condemned and takefl herein is situate
in Ada County, State of Idaho, and is more particularly described
as follows:
See Exhibit "A" attached hereto and made a part hereof.
5. Plaintiff will construct at its sole cost and e
' xpense,
one 40-foot approach at Station 89r1,','.17 (easterly) side of
Project F-FR-3271 (44) .
6. Plaintiff hereby grants to Defendants or their
successors or assigns the right to construct in the future, for
development purposes on the
property, a right of access for a
foot wide right -Of -way for a 41-60-
foot back-to-back of curb public
street approach between 86+00 and
98+50. The cost of`
construction of the
this approach shall be at
Defendants or their successors or assigns the expense of
7• Plaintiff grants to
further � the
Defendants or their
successors or assigns the right to close the access points
referred to in Paragraphs 5 and 6 of this Judgment and construct,
at its sole expense and cost, a right of access for a 60-foot wide
right-of-way for a 41-foot back-to-back Of
Stations 86+00 and 89+19. curb approach between.
SECOND JUDGMENT AND DECREE
OF CONDEMNATION - 2
B. The existing I? -;Pot ditch rider approach located at
Station 85+54 Right (easterly) shall be constructed by the
Plaintiff and at its sole cost and expense and shall further by
for the sole use of the ditch company. If the property is
developed in the future in such a manner that the ditch rider
access point at Station 85+54 is no longer necessary, it shall be
removed.
9. All Points of access, other than those described herein,
between the subject property and Eagle Road are extinquished.
10. That the fee simple title to the Itereinabove described
Parcel No. 24 be, and the same is vested. in the State of Idaho.
CI,4I \
DATED this l day of April, 1989.
ROBERT G. NEWHOUSE
DISTRICT JUDGE
STATE OF IDAHO
� NTY OF ADA
I IONN PASTIDA. CLVIN OF THE oL^.•rFiC7! Cl1^T GI TH cQ,�RTH
JIJ IC; 4' D,:;TR!CT r,F T 6
COUNTY 0r Ao q(� (•,e:._' . `'Li' - %= `,•':� fiJ /!';,' OR E
Tftua-ANDCOR� '(,Tr,: = ,r. ,T ''�E TO+: OIA;; IS
Ifs t�IT:rc33YJtdS cGi, I I`?•_! �! FILEl?lil: SQr=FfCE.
FIXEDAY OFFICAL SEAL T HIS�G y Cr
JOHN FASTIGA, CLSFt 192
DEPUTY.
A& Caur.;y, litho t�
j�Gu�ct c!
TIME !
DATE
JCHN S. STID
BY
SECOND JUDGMENT AND DECREE
OF COtdnEMNATION _ 3
'- J j4 ec � -10 . F-
EZ-3271(4•i)
Parczl No. 24, Id. No. 31900
Flay NO. 4340
-P. RCEL N0. Z;
A Oar-eT ox land ta_^C t i2 E25t8r1
�JdC, `�rJ�BCt 1C. F- ^ j7 Z � . v S-C Of t'^.e tented •Co
v - ( ay - EaCLE
ti -eo_ now on file in t ie� -� fi-g"w-_ Su_vey 3s shown on t o g1a :s
mint C vis;Jn orc_ca of t_.e "aaO
t,o I or a_c,:wa_r3, and bei: a Transpor__t_an De:sr..
r, 9, Toar.s;:ic 3 Nvrta Rance -tea _or- an or tie y:T_S:v � or ac-
follcws, t7_W-' .. ' �' 1 East, ., BQIS: i�e_ iCian o
d sc;_cec as
-- 3ecinn=ng at tree NOCuhwesr cornee f o
Race T t O� the i�v'I$;t1 j w Sec-_C
Eases, BOis2 i'1 �i3:l _ 1 9l..lvai:e:
the^cs Easta=� Y• alone
F - tie Ncc'h line a
rj^ C:e cc i-cs, to 'a point in a 1� oS? Q A14v�_S:V� 2 d�S`.3nr QC 70.0
Eas..--_v f^ .,v : ara__ej i6.
_v^R t.. ca!1C3^line and be r3 •JOut1 9u°3lW ona•'C 7Q.0 yea=
flan 89-59.. 7 0� i 4 ° t` S
Sary said Eagle Road, DrojPct No. g_ 3 ..as __o:z ta-
:-3271 (4-') __c :way
thence South 1*23117" West along
Point the s2'-d a=-311s? line 4 3.50 feet to a
Xeta In t._ Nortze='1_v line of tze tract o� lard as
_ s and Bounds Desc_ describes by ^i�t:on or tz� exception in that car-,; tie
Des4 date•? AOril 29, 1967 �__n W
7963 , recaried Dece;rber 19 a zQr`ncJ
den;.8w r_c^rds of Ada County, Idaio �,;z: 197 �s Instrsz_•. No.
with t e NOr taerld ivy line o, i -c Nor 'herly i:,e cJ i -c'
PaCeS 3721 n� �% tJ a Dlat tier? f 7ar: O r'J�II1a=.:_ ??:,'{ jQ.^.'
islon, accords Block 2
ti in Bo
a.. 372', records of Ad O� a5 0= o1=ts zt z County, Idaizo;,
the -ice alone the irregular tar Nor:zerly lire of said tract of l
follows: SOuth 84°19'57" West (shcwn oz recor3 tJ be SOut:s and as
12`
West) 32.10 feet to a
ty corner,
record to be Svuta 1°21r18"rWest) 43.53Souoh 20491351, West (shown of
{shown cd record to be Nort ° �. " North 85°13'2-" nest
1'esterl L86 41 48 nest) 12.14 feet to the most
Y corner Of said trac,. Of land bein5 a point in tze Eas;erly
rich, O.6 wa_v line Of existing Eagle Road and bears Sough 88 3._
25.0 feet from Station 8;�g8.08 of said F_ig:hway Suryev; _
° "43" East
t:into -North 88°31'43" 'rTest
aid NW ;23.0 fes: to a point in t7e trT ,
.'5;1�1 -
esz. line Qf
the:ce eVvv.along sal_ Wes: line 460.0 fait, mor=
P_:.C� Oc 1 'VG.
Or less, to
Eighway Station Reference: 8yT98.08 to 89=33.17
The area above described contains aoceoxi
acres of whic is ac�Cnowledged to be a `era `ly 1.572' 0.8294
acres
on Of a Public road,
n39a 1 of 2
VL...�� 1.
F:O'ecc No. F-FR-3271(44)
P'--s' No. 24, -Id. No. 31904
3a_, Nc. 43:0
OC wa:r fanc_nc to
:;,,a. be coast=t:cc_3 to des' c? Sze Fcocercv i a is nat re:e_sariiv
o: waY genc _ 1 a and an v'r-3^co ba_ e= :
s : lac - _
_7 t ,. y ZiC t le actual prcca: �! 1i ! .., +e
j;^Ze C:,nS:s2_ as 3 [IlOC2.._CaC_On`OC 3?t?e3a_C:_
AND
PARCEL No.
e3S2'_nt t0 Q + +
o r.aor., Occ' and ;
.�="n In a "L'OLtidn of t:le N;y:1j' 17V C52 a St_ .� Oi lartC: 5.0
.rc3:�C3 1 GaSL., P.O1S2 �ierididrl„ ti3�Sr Of'Sec-lcr. C9, ':o;;; °li_ 3 14ort%,,
w'- to Cashrly side - t es�__Iy side of w=Ci is cc;; ._;e.�
or he above de --i� :. .._
ya. 211 .7nQ 1 ji ng be=gee^ the-`= par -a! o_ lard
Nar�as=l,r !;--
�__:< Sind:• i_; , _ of Lo= ? c' 3_cc:c 2 -
% --on, A.: CJczt-, o=
n a , zCa..o Z.^.0 t_+.a i*C= t7 Z� 1S Of SG�
a..d COri�3lAinC aJOLOX1�at_?Tr Q.�Y%�
Const SczinC r dCL2S JC the Dt;r� OS2 Of
t�le_eon an irrigation ditch and/or pi?eii:_ and Eacili��es
tOCEt J ertZ the ri ht and p'rivijeCe Oi incL35S d;1C e--?ti, to a[1C r=;,�
said n a �, for said purpose.
F3_z 2 of 2
`-' RECEIVED
MIC HAEL J. KANE
KANE & TOBIASON, LLP
1087 West River Street, Suite 100
Post Office Box 2865
Boise, Idaho 83701-2865
Telephone: (208) 342-4545
Facsimile: (208) 342-2323
Idaho State Bar No 2652
BEFORE THE IDAHO TRANSPORTATION DEPARTMENT
FEB 21,2007
City of Meridian
City Clerk Of
In the Matter of the Encroachment ) Encroachment Application
Application No. 03-05-392, ) No 03-05-392
}
J ACKS ON FOOD S T ORE, } FINDINGS OF FACT,
} CONCLUSIONS OF LAW
Appellant } AND PRELIMINARY ORDER
}
This matter came on for hearing on December 20, 2005, at the .Idaho Transportation
Department Building in Boise, Idaho.. The hearing was based upon an appeal brought by
facksons Food Stores (hereinafter "Jackson") pertaining to Encroachment Application No 03-
05-392 Iacksons was tepresented at the hearing by Brian Ballard and Geoffrey Wardle of Hawley,
Iroxell, Ennis and Hawley, LLP The Idaho Transportation Department (hereinafter "ITD") was
represented by Steven Party, Deputy Attorney General. Both parties presented sworn testimony on
behalf of their respective positions. The pasties stipulated to numerous exhibits
I.
STANDARD OF REVIEW
Ihis action is an appeal in accordance with the appeal mechanisms set forth for denial of
variances to right-of-way encroachment applications. Iacksons argues that the agency denial of
FINDINGS OF FACL CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P 1
c
both the encroachment application and the variance are not supported by substantial evidence on
the record as a whole and that the denial was arbitrary, capricious, or an abuse of discretion.
II.
ISSUES
Although there are subsidiary issues, the main issues presented are as follows:
1 Jackson is in possession of a warranty deed wherein Jacksons claims that its
predecessor in interest in the land obtained access to the east side of Eagle Road, just south of Pine
Avenue..' Jacksons sought an encroachment permit based upon this previously granted access
Relying upon the same documents as .Jacksons, ITD denies the existence of this approach.
2. Jacksons asserts that the denials of the encroachment application and the
subsequence variance application were arbitrary and capricious and/or an abuse of'discretion ITD
asserts that ITD staff followed procedures found within the Idaho Code, IDAPA and the ITD
Access Management: Standards and Procedures, and that the denials by ITD of the encroachment
application and the variance were based on the paramount requirement of public safety
f
III.
FINDINGS OF FACT
I, having heard the testimony, having reviewed the admitted exhibits, having reviewed the
post -hearing memoranda of'both parties, having considered the matter herein, and being advised
in the premises of the law, make the following Findings of fact:
A. Undisputed Facts.
In April of 1989, ITD and Jacksons' predecessor in interest (the Dobarans) entered into a
stipulation for settlement resulting in a document entitled "Second Judgment and Decree of
1 It should be noted that the various exhibits interchangeably refer to Pine Avenue and Pine Sneet, often in the same
document
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PREIIMiNARY ORDER - P 2
Condemnation" executed by District Judge Newhouse on April 19, 1989 The Second Judgment
contains three (.3) paragraphs that are at issue in this appeal. Paragraph 5 of the Second
.judgment states in its entirety:
Plaintiff will construct, at its sole cost and expense, one 40-foot
approach at Station 89+18.17 (easterly) side of Project F-FR-
3271(44).
Paragraph 6 states in its entirety:
Plaintiff hereby grants to Defendants or their successors or assigns
the right to construct in the future, for development purposes on
the property, a right of access for- a 60-foot wide right-of-way for a
41-foot back-to-back of curb public street approach between
86+00 and 88+50, the cost of the construction of this approach
shall be at the expense of Defendants or their successors or
assigns.
Paragraph 7 states in its entirety:
Plaintiff' further grants to the Defendants or their successors or
assigns the right to close the access points referred to in Paragraphs
5 and 6 of this Judgment and construct, at its sole expense and
cost, a tight of access for a 60-foot wide right-of-way for a 41-foot
back-to-backjof curb approach between Stations 86+00 and 89+18
The only other paragraph of the Second .Judgment in contention is paragraph 9, which
reads in its entirety:
All points of access, other than those described herein, between the
subject property and Eagle Road are extinguished
The plaintiff referred to in the Second Judgment is IID The defendants are the
Dobarans At the time of the agreement between IID and the Dobarans, the Dobarans' property
consisted of farm fields.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P. 3
The as -constructed plans for Project F-FR-327(44) demonstrate that a forty (40) foot
approach was constructed at Station 89+18.38 on the east side of Eagle Road This approach
apparently was blocked by a gate. At the time, Pine Avenue did not exist.
In 2001, the Ada County Highway District (hereinafter "ACHD") constructed the Eagle
Road —Pine Avenue intersection This intersection completely covered the approach and the gate
located at Station 89+18.38
Sometime after 1989, a gentleman named Van Auker and his joint venturers acquired a
portion of the Dobarans' property. Van Auker in tarn deeded some or all of this property to
Jackson in March of 2005 the legal description of the property transferred coincides with the
southeast corner of the Eagle Road — Pine Avenue intersection.. The Second .Judgment is referred
to obliquely in the legal description, as referencing the location ofthe transferred property. The
deed also purports to transfer to Jacksons the property's "appurtenances "
By 2005, the complexion of the area surrounding the property of contention had changed
dramatically The area had become developed and Eagle Road had become a Type IV arterial.
Eagle Road at the intersection of Pine Avenue contains four (4) lanes with a double left turn
signal proceeding from the northern portion of the intersection onto the southern portion of Pine
Avenue, with a double left turn lane on the east portion of Pine Avenue directing traffic in a
southerly direction onto Eagle Road, Eagle Road does not contain a right turn lane at the
southern portion of the intersection of Eagle Road and Pine Avenue,
.Jacksons seeks to place a food store and gas station on its property at the intersection of
Eagle Road and Pine Avenue. Jt has acquired an approach directly onto Pine Avenue which
appears to be limited as a tight-inlright-out approach. It apparently also as acquired a full access
approach on adjoining property to the east through a cross -access agreement.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P 4
In .Tune of 2005, .Jack Davis, representing Jacksons, filed for a right-of-way encroachment
application and permit, designated as a "new approach" on Eagle Road at Jacksons' property
The proposed approach is a tight -in only approach onto Jackson' property off Eagle Road. In
order, to improve safety at that approach, .Jacksons also has proposed to construct a right turn lane
at the southwest comer of the Eagle Road — Pinc Avenue intersection the right tum lane would
be constructed by Jacksons in an effort to mitigate yearend collisions that could occur if" Eagle
Road remained unimproved at that location The right turn lane is preceded by a taper lane. The
right -in only approach would appear to be located approximately 100 feet from the beginning of
the taper lane, leaving a 300 foot deceleration lane extending to the Pine Avenue intersection
This approach and deceletation/right turn lane was designed by Patrick Dobie of Dobie
Engineering, Inc , who also provided a traffic impact study to 1TD at the time of the request for
the encroachment permit
On .June 24, 2005, Mr. Davis was notified in writing by Kevin Sablan, P..E.., an ITD
district assistant traffic engineer, that ITD's Tgcommendation would be for denial of the permit.
the stated reason for the proposed denial was that the approach "does not meet spacing
requirements for Type IV access control (half mile intervals).." Assuming that Jacksons would
apply for a variance, Mr. Sablan placed the permit application on the agenda for consideration of
the variance.. In other words, it appears that Mr. Sablan recommended treating the encroachment
application as a de facto request for- a variance
On July 12, 2005, Mr Sablan informed Mr. Davis that the encroachment permit
application had been denied. It is unclear from the letter whether, Mr Sablan was referring to the
original permit application or a review of the application as if it were a variance request. On
July 19, 2005, Jacksons, through their attorneys, informed ITD that it wished to appeal Mr
FINDINGS OF FAC7, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P. 5
Sablan's decision. It is unclear from the letter whether, Jacksons was under the impression that it
was appealing a denial of a variance request as well as denial of the application for the permit
Sometime after the July 19, 2005, letter from .Jackson to ITD, a meeting was held among
the attorneys for the ITD and .Jacksons. Apparently, ITD produced the 1989 Second .Judgment
and claimed that the approach Jacksons apparently thought it had obtained from Van Auker had
been extinguished
On August 31, 2005, IID officially denied the permit application First, ITD claimed that
the Second Judgment had extinguished all tights of access to the parcel with the exception of the
construction of Pine Avenue_ Second, ITD stated that the application did not comply with ITD's
variance policy.
B. Interpretation of the Second Judgment of Condemnation.
Limited testimony was presented at the appeal hearing regarding the meaning of
paragraphs 5, 6 7 and 9 of the Second Judgment and Decree of Condemnation. Instead, each
party relies on the language contained in the judgment and cross-references the judgment to other
exhibits. Each party argues that its position is demonstrably clear and then argues the legal
ramifications of their position.
ITD claims that the relevant paragraph to be reviewed is paragraph 7 IID states that this
paragraph can only mean that the Dobarans intended to construct a public street somewhere
between Stations 86+00 and 89+18 When Pine Aw,-, — ___ , --. .. .
construction resulted in the extinguishment of the rights of access contained in paragraphs 5 and
6. IID further argues that paragraph 6 refers to another public street approach which was never
constructed I'ID does not discuss the meaning of paragraph 5. .Jacksons argues that the
judgment (based on a stipulation that was presumably drafted by ITD) unambiguously granted to
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELINUNARy ORDER - P 6
the property owner (not ITD and certainly not ACHD) the ability to put an approach at the
property owners' expense anywhere between Stations 86+00 and 89+18.
lID claims that the deed between Van Auker and Jacksons is silent as to access rights,
and implies that any right-of-way that may have existed did not run with the land 1113 also
points out that the adoption of' Jacksons' argument would imply that ACHD's right-of-way at
Pine Avenue is invalid..
Iacksons rejoins that 1113 drafted the condemnation agreement and judgment and IID has
to live with the results. Jacksons then goes on to assert that it probably did not even need to
apply for an encroachment permit in the first place because it already had a right of access..
Ihere is no way to know the actual state of mind of the parties in 1989 As stated
previously, no testimony was presented whatsoever as to what Dobaran or I1D really intended to
mean by their stipulated judgment However, some things are clear. As stated by ITD, the
context of'the negotiations at the time involved farm field applications.. ITD apparently held up
its end of the bargain when it constructed a 40-•foot approach at iStation 89+18 38. Dobaran then
had the option of' constructing a second right of'access somewhat to the south of the constructed
40-foot approach. This was apparently at the complete option of'Dobatan, both as to the location
of that approach and the timing.. In the alternative, Dobaran could have placed an approach
larger than the 40-foot approach mentioned in paragraph 5 at the location of the 40-foot approach
and expanded it to a 60-foot wide right-of-way, or placed that approach anywhere south to
Station 86+00. Reading paragraphs 5 and 6 together, it is clear that Dobatan had complete
control over the process. If' Dobaran chose to place the approach anywhere north of Station
88+50, the 40-foot approach at Station 89+18 17 would be extinguished. Paragraph 9, on its
FINDINGS OF PAC], CONCLUSIONS 01 LAW AND PRELIMINARY ORDER - P 7
face, was not designed to be a trigger as to the extinguishment of the approaches mentioned in
paragraphs 5, 6 or 7.
I find that when Pine Avenue was constructed at its present location, it de facto
extinguished the approach mentioned in paragraph 5 (presumably through condemnation)
Whatever Pine Avenue is and however it got there, it is clearly not a 40-foot approach and cannot
be "extinguished" at the option of Jackson in accordance with paragraph 7. Simply put, the 40-
foot approach mentioned in paragraph 5 and Pine Avenue are not the same thing.
I further find that building of Pine Avenue was not a trigger that extinguished the
alternate approaches found in paragraphs 6 and 7 Pine Avenue was apparently constructed by
ACHD and the trigger, for the extinguishment of' the approaches contained in paragraphs 5 and 6
was that Dobaran or his successors were to build the approach in question That did not happen.
I further find that although the warranty deed between Van Auker and Jacksons did not
specifically mention the right of access, that right of access is an appurtenance Appurtenances
are defined as things which aid incidental to land to be used for the lands benefit Black's Law
Dictionary, 6`" Ed. Rights -of -way are considered to be appurtenances. Northwestern and Pacific
Hypotheekbank v Hobson, 59 Idaho 119, 80 P.2d 793 (1938).
In short, Dobaran and his successors had a paper tight of access that ran with the land but
that was unused. Although Jacksons has a paper, right of' access to Eagle Road, this does not
mean that it has the right to immediately construct an actual encroachment without ITD
regulation and approval Ihis is so because ITD has the unequivocal power and duty to
continuously monitor and regulate, relocate or even remove "any approach or its appurtenances
within the highway right-of-way, when necessary for maintenance, rehabilitation, reconstruction
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P 8
or ►elocation of the highway and/or to provide proper protection of life and property on, or
adjacent to, the highway IDAPA 39..03 42 300 13
If anything is certain, ITD has the power to deny partial access to private property when
such an action bears a reasonable relationship to public safety or the general welfare. Only in
those circumstances where ITD behaves in an arbitrary manner or "transgresses the bounds or
reasonableness" will there be a taking of'private property for public use Johnston v. Boise City;
871daho 44, 52, 390 P 2d 291 (1964); see also City of Coeur d'Alene v Simpson, 2005 Westlaw
286936 (2005).
I find that ITD was within its powers and duties to require facksons to file a right-of-way
encroachment application. While the right of access in question may not have been "new" on
paper, it was certainly new in reality and subject to ITD regulation..
C. The Application Process..
As noted previously, it was the determination of ITD, following the unanimous
recommendation of ITD staff, to deny the application.
I find that ITD was correct in denying the application. This result was dictated by IDAPA
39..0.3.42.400.03 which states in pertinent part that "all approaches and signals shall be spaced" at
half -mile intervals in urban areas_ (emphasis added). Indeed, it appears that .facksons tacitly
accedes to the notion that ITD was within its powers in denying the application as it has
presented no compelling argument that ITD's interpretation of the application or rules was in
error .
A subsidiary issue that has been raised regarding spacing requirements arises from a
document apparently prepared by ITD staff that was circulated and ultimately found its way into
the hands of Jackson' expert, Mr Dobie The document, which appears on its face to be a 2002
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P 9
update of the ITD Access Management Standards and Procedures for Highway Right -of -Way
Encroachments, purports to amend spacing requirements on Type IV atteiials somewhat The
language apparently relied upon by Jackson expert reads as follows:
Type IV — Private or Commercial Approaches — Requests for new
approaches and all requests for changes in existing access in Type
IV access control shall be required to meet or exceed the minimum
spacing standards stated in Type III and have prior legal rights of
access, unless a variance of policy has been approved by the chief'
engineer
This language purports to come from page 74 of a document entitled "ITD Access
Management: Standards and Procedures for Highway [light -of -Way Encroachments." The
controversy arises from the fact that Type III spacing for encroachments under the purported
document is reduced to quarter -mile from half -mile spacing Hence, it was opined by Mr. Dobie
that Jackson request met ITD access management standards because the approach was firrther
than quarter -mile fiom the intersection at Pine Avenue and a prior legal right existed.
Unfortunately, despite the fact that the aforementioned amendment was printed as an ITD
3
document and appears in every respect to be taken from a valid ITD policy manual, the
amendment was never officially adopted by ITD Although it is unclear as to when it was
discovered that 1113 had disseminated some of the unadopted standards (apparently called the
"2002 document"), it now appears that the "2001 document" relating to 11D access management
is the applicable standard This standard was on the internet throughout the time period that Mr
Dobie was preparing his traffic impact study
1413 asserts that Mr Dobie's opinion that the proposed access is within ITD driveway
spacing criteria, is based upon the "2002 document." His opinion is erroneous, says ITD,
because the document never was adopted, and therefore his opinions should be excluded
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P. 10
Jackson' expert apparently relied upon a document that to all intents and purposes
appeared to be a valid ITD management standard the fact that the assistant chief engineer had
never seen the document and the fact that the document had never been formally adopted by ITD
cannot be held against Mr Dobie
Nevertheless, I am constrained to find that the law as to whether or not a variance should
be granted in this matter is the 2001 document. While I must find that Mr- Dobie's opinion that
Jacksons' request falls within the spacing requirements of ITD is erroneous, there is much more
to his testimony and traffic impact study than that on the issue of whether or not the variance
should be granted For the record, I am not going to exclude Mr. Dobie's testimony and impact
study from consideration, except for the aforementioned opinion, which in any event is a legal
conclusion that must be made by the fact finder.
D. The Variance Application.
.Jacksons followed all appropriate procedures in applying for the permit, which included
the forwarding of a traffic impact study, prepared by Pat Dobie of Dobie Engineering, Inc, to
IID As noted previously, ITD correctly rejected the application.. This rejection triggered a
review of ITD's variance policy It appears that both Jacksons and ITD acceded to the need for a
variance review_ It appears that a meeting between attorneys for Jacksons and attorneys for ITD
took place, but no agreement was reached Ultimately, the variance was denied for three (.3)
reasons: ITD believed it acquired all access rights; the property had allegedly adequate access off
Pine Avenue; and granting access would not improve traffic safety on Eagle Road
ITD's variance policy is found in its 2001 Access Management: Standards and
Procedures for Highway Right -of -Way Encroachments. The policy begins with the following
cautionary language:
FINDINGS OF FAG?, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P 11
1*�
Access management standards and procedures set minimum
requirements that should be met or exceeded under normal
conditions. However', unique conditions can make the application
of standards and policies impractical or impossible Thus, the
district or delegated local highway agency can consider- variances
when practicable.
As can be seen, this language is hedged with advisory terms stating recommended but not
mandatory conditions the policy then goes onto state:
Variances shall not cause a reduction in traffic safety, operational
efficiency, or, functional integrity of each highway classification. A
more restrictive variance policy is in effect as the level of access
control becomes more stringent,
Hence, it is a mandatory condition that any applicant for a variance must demonstrate that
highway safety and operations will not be degraded. Beyond that, there apparently is a sliding
scale toward a more restrictive review as the variance is applied to the access type.
the language in the policy then states that a variance may receive favorable
consideration:
• If the variance would improve traffic safety or operations.
• If' the variance allows access to a landlocked parcel having no
reasonable alternative access and having no significant impacts
to safety or traffic operations
The word may is interpreted under the guidelines as a permissive condition No
requirement is intended
A request for a variance may not be granted:
• If the variance would negatively impact safety.
• If the variance would degrade traffic operations of the system
• If reasonable alternative access is available
As stated previously, degradation of safety or traffic operations will doom the request for-
a variance automatically It appears that the use of the words "may not" means that if reasonable
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P 12
alternative access is available to the applicant, it might result in an unfavorable decision, but not
necessarily must
From all this, it appears that each variance is to be considered on a case -by -case basis
with an eye towards statewide consistency. The parties seem to agree that the variance decision
is entirely discretionary and will not be overturned absent a demonstration that the decision is
arbitrary or capricious, or not based on substantial evidence.
Although Jacksons takes ITD to task for applying concepts found within zoning law to
the concept of a variance, it appears that the concepts in zoning laws to variances are both
reasonable and intended by TTD Variances maybe granted upon special circumstances (whether'
denoted as unique, peculiar or some other term) when the public interest will not suffer.
Are the circumstances in this case unique? If' find that they are, facksons has a paper
Tight of access already agreed upon with ITD It proposes to exercise that right of access, and
does so in a way that the ITD engineers testified would be the safest use of the right of access
available As will be seen, the question comes down to whether- it is reasonable to require the
landowner to use the access points off Pine Avenue or whether- this decision will in and of itself
create further dangerous conditions it is recognized that the access management standards state
that a variance may not be granted when:
. the variance is requested due to a hardship created by the
landowner or business This includes but is not limited to
subdivision or partitioning of the property, conditions created by
the proposed building footprint or location or onsite parking or
circulation, or where the access management standards can be met
but the result would be a higher site development cost.
I find that facksons did not set out to create a hardship.. Rather, Tacksons applied for an
encroachment permit in order to maximize the use of its property. I am cognizant of .facksons'
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P 13
claims that truck access will be more difficult, but these concerns are not controlling. The
question is whether a paper right of access can be extinguished, thereby creating a potential for a
degradation of traffic safety at the alternate entries to the property. Under these ciretunstances,
the application is "unique" enough to allow a variance to be heard. This was tacitly agreed to by
fTD, when it unilaterally placed the application into the variance consideration process.
1TD asserts that the variance should be denied for the reason that alternative access is
available ITD cites Merritt v. State, 113 Idaho 142, 742 P2d 397 (1987) in support of the
proposition. Merritt is not controlling in this matter The Merritt court dealt with a
condemnation situation in which two (2) of four (4) rights of access were condemned. The court
found that the remaining access points were "reasonable" and therefore access to Metritt's
property had not been "destroyed." This in turn meant that no taking had occurred. The Merritt
case cannot be read to have created a rule in every case that the State can close some access to
private land without restriction as long as other accesses remain.. The operative decision point in
Merritt, as in the ITD access management standards, is whether reasonable alternative access is
available. Reasonability must turn on public safety considerations. This is the heart of the
matter at issue in this case Will denying the light -in only access degrade public safety by
requiring entry off of Pine Avenue? Or, will the granting of the right-of-way encroachment
degrade public safety in and of itself?Z
Jackson has presented a fifteen (15) page traffic impact study accompanied by numerous
appendixes. In addition, .Jacksons' expert, Mt. Dobie, testified as to his calculations and
z As noted previously, reasonable alternative access is not mandatotily fatal to a variance request If the standard
stated that variances would be denied in all cases of reasonable alternative access, the analysis would be different
Instead, the guidelines use the words "may" and "may not" which are defined as "permissive" conditions No
requirement is intended Hence, the issue of reasonable access only becomes one factor to be weighed if the
applicants can demonstrate that public safety will be unproved.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P 14
Jacksons asserts that the decision was arbitrary and capricious and not based on
substantial evidence. f1D has demonstrated that the appropriate procedures were gone through,
but little more. As fai as the record is concerned, the traffic engineer's decision might have been
based upon the same approach taken by Mr Sablan: that the variance should be denied because
the application for the encroachment should have been denied.. It is unknown whether the
engineer disagreed with W. Dobie's assessment regarding traffic safety or not.
Because I cannot find that the traffic engineer- denying the variance engaged in a weighing
of discretion, or did not act arbitrarily or capriciously, I am constrained to find that the traffic
engineer was in error when the application for variance was denied. It may be that the traffic
engineer believed that the right-of-way had been extinguished with the building of Pine Avenue,
which also militates against the traffic engineer's final decision.
I make these findings with some trepidation, It is clear to me that ITD's traffic engineers
genuinely believe, as a matter of personal understanding, that Mr. Dobie's right -in only
encroachment will not enhance public safety. Nevertheless, the record is what it is Neither of
t
ITD's engineers was able to demonstrate what was wrong with Mr.. Dobie's calculations or his
ultimate opinion.
Based on these highly unusual circumstances, .Jacksons has carried the day Nevertheless,
it would serve Jacksons well to remember that the IDAPA Rules are clear that if an approach is
constructed along Mr Dobie's recommendations and it buns that public safety has not been
served, ITD has the power under the Rules to close the approach
FINDINGS OF FACI, CONCLUSIONS OF LAW AND PRELIMINARY ORDER- P 18
Own
IV"
CONCLUSIONS OF LAW
I The building of Pine Avenue did not extinguish Tacksons' paper right of access to
Eagle Road.
access.
2 ITD was correct in requiring an application process despite the paper right of
3, IT was correct in denying the application.
4. fTD has failed to demonstrate that the denial of the variance was not arbitrary or
capricious, or not based on an abuse of discretion.
IT IS SO ORDERED.
A This is a preliminary order of the hearing offcei It can and will become final
without further action of the agency unless any party petitions for reconsideration before the
hearing officer issuing it or appeals to the hearing officer's superiors in the agency. Any party
may file a motion for reconsideration of this preliminary order with the hearing officer, issuing
t
the order within fourteen (14) days of the service date of this order. The hearing officer issuing
this order will dispose of the petition for reconsideration within twenty-one (21) days of its
receipt, or the petition will be considered denied by operation of law See section 67-5243(3),
Idaho Code
B Within fourteen (14) days after, (a) the service date of this preliminary order; (b)
the service date of the denial of'a petition for reconsideration from this preliminary order; or (c)
the failure within twenty-one (21) days to grant or deny a petition for reconsideration from this
preliminary order, any party may in writing appeal or take exceptions to any part of the
preliminary order- and file briefs in support of the party's position on any issue in the proceeding
FINDINGS OF FACT, CONCLUSIONS OF LAW AND PRELIMINARY ORDER - P. 19
NFWI ..01
to the agency head (or designee of the agency head) Otherwise, this preliminary order will
become a final order of the agency
C Many party appeals or takes exceptions to this preliminary order, opposing parties
shall have twenty-one (21) days to respond to any party's appeal within the agency. Written
briefs in support of or taking exceptions to the preliminary order shall be filed with the agency
head (or designee) The agency head (or designee) may review the preliminary order on its own
motion
D If the agency head (or designee) grants a petition to review the preliminary order,
the agency head (or designee) shall allow all parties an opportunity to file briefs in support of or
taking exceptions to the preliminary order and may schedule oral argument in the matter before
issuing a final order. The agency head (or designee) will issue a final order within fifty-six (56)
days of receipt of the written briefs or oral argument, whichever is later, unless waived by the
Patties or for good cause shown. The agency head (or designee) may remand the matter for,
further, evidentiary hearings if further, factual development of the record is necessary before
issuing a final order.
E Pursuant to sections 67-5270 and 61-5272, Idaho Code, if this preliminary order
becomes final, any party aggrieved by the final order or orders previously issued in this case may
appeal the final order and all previously issued orders in this case to district court by filing a
petition in the district court of the county in which:
1. A hearing was held,
2, The final agency action was taken,
3. The party seeking review of the order resides, or operates its principal
place of business in Idaho, or
HNDINGS OF FACT, CONCL USIONS OF LAW AND PRELIMWARY ORDER - P 20
4 The real property or personal property that was the subject of the agency
action is located.
F. This appeal must be filed within twenty-eight (28) days of this preliminary order
becoming final_ See section 67-5273, Idaho Code The filing of an appeal to district court does
not itself stay the effectiveness or enforcement of the order under appeal
DATED this 47?C) day of March, 2006.
KANE & T OBIASON, LLP
BY:
MICHAEL T. KANE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the day of March, 2006, I caused to be served a ttue
and correct copy of the foregoing document by the method indicated below and addressed to the
following:
Mr. David Ekern, Director ✓ U.S. Mail
Idaho Transportation Department Hand Delivery
P O. Box 7129 Overnight Mail
Boise, ID 83707-1129 Facsimile
[0?iginal document transmitted for filing J
Mt, Brian L Ballard
Mr, Geoffrey Wardle
Hawley, Troxell, Ennis & Hawley
877 Main Street, Suite 1000
P O Box 1617
Boise; ID 83701
Mt . Steven M. Party
Office of the Attorney General
3311 West State Street
P O Box 7129
Boise, ID 83107
�U S Mail
Hand Delivery
Overnight Mail
Facsimile
U.S. Mail
Hand Delivery
Overnight Mail
Facsimile
MICHAEL J KANE
FINDINGS OF FACT, CONCI USIONS OF LAW AND PRELIMINARY ORDER - P 21
001-JACKSONS FOOD STORES
G/L INCOME STATEMENT
Page:
1 Prog: GL5100.
Consol P&L -Stores PIS 4223 '.
For Period 12/2006 Ended 12/31/2006
Date/Time: 02/27/2007 03:45-PM•
--------------------------------------------
----------- 7
Current
------------------- --------------------
Period------ ^-------- ---- ----------
:
------------
Yea'r�to-Date
Description Actual. }.
------------' -----' --- -----
Prior
Year t t Chg Actual
------------------^-- -- ---- -
.t
------- --
Prior Year
----- -------
} V Ch
--- --------------- - ---
LOCATION - 105 - 0105 - Eagle
6;B t3e:
_E C
IVED
GALLONS SOLD
- 1-,240,553
Margin./ Cents Gal:
209,904
SALES
F EB 2 7 2U-07
SALES - UNLEADED G
1,895,557
43.99
SALES - MID -GRADE
- 224,474
5.21
'
SALES - PREMIUM GA
182,707
- 4.24
Cjty of Meridian
SALES - DIESEL FUE
1,175,362
27.28
City Clerk Office
TOTAL GAS/DIESEL.
3,478,100
80.72
D
SALES - MERCHANDIS
763,154
17.71
LOTTERY SALES - NE
6,266
.15
GASOLINE VOLUME CR
26,021
.60
Car Wash Revenue
33,632
.78
MISC SALES REVENUE
.1,809
.04
TOTAL SALES
4,308,983
100.00
0
GROSS MARGIN
G/M - UNLEADED'
98,489
5.20
G/M - MID -GRADE
13,991
6.23.
G/M - PREMIUM
15,756
8.62
G/M - DIESEL
81,668
6.95
G/M - MERCHANDISE
248,737
32.59
G/M - LOTTERY
6,266
106.00
G/M - CAR WASH'
24,418
72.60
G/M - ALL OTHER
•27,830.
100.00
TOTAL GROSS MARGIN
517,154
12,00
.0
OPERATING EXPENSE
DIRECT PAYROLL
-161,219
2.35
PAYROLL RELATED
32,421
.75
-
RENT & LEASING
1,336
.03
CREDIT CARD.EXPENS
63,719
1.48.
MAINT & REPAIR
? 18,.396
.43
12S
649.76
Utilities - Other
'25,618
:59
19
588.67
ADVERTISING/PROMO.
-
1,733
.04
MATERIALS/SUPPLIES
.13,548
.31
OUTSIDE SERVICES
2,185
.05
Inventory Over/Sho
3,650
.08
Cash Over/Short -
1,468
.03.
TAXES & LICENSE
35,958
.83
1,695
21.27
INSURANCE EXP -. Gt.
3,919
.09
TRAVEL & ENTERTAIN'
396
.01
Spoilage / Breakag
8,349
.19
EMPLOYEE COSTS/BiJi
425
.01
-
Dues & Subscripti6`.1,047
.02
LEGAL & PROFESSION
21,067
.49-
868
327.82
Bad Debt Expense
66
MISC. ALL OTHER
9,594-
.22-
INTEREST EXPENSE -
183,862
4.27
DEPRECIATION/AMORT
142,100
3.30
ALLOCATED. OVERHEAD
50,577
1.17
TOT OPER. EXPENSE
703,464
16.33
2,706
892.13
NET OPERATING INCO
- 186,310-
4.32-
2,706-
783.92-
RECEIVED
FEB 2 7 2007
of meridian
COMMENTS FOR INCLUSION IN RECORD C ty Office
Notwithstanding that the following may have been discussed in Jacksons' oral presentation, the
following comments are set forth in writing for presentation to the City for its deliberations, and
for inclusion in the record, as follows:
1. There is a letter from Sue Sullivan of ITD in the packet, dated 2/8/07, which says ITD
recommends denial because the matter is in litigation, and because ITD's previous denial was
based upon Meridian land use policy.
That is not consistent with the position ITD took in its brief in Jacksons pending district court
appeal of ITD's denial.
ITD, in its brief, said that ITD previously recommended that Jacksons go to the City of Meridian
to obtain City approval, and then come back before ITD with its request for an access. ITD
reasoned that such approach would do away with all the conflicts.
Now ITD says something different. But ITD can't have it both ways. ITD says that it can't do
anything until the City approves, and tells Jacksons to go seek City approval. And then it says
that the City should disapprove because ITD has already disapproved based upon the City's
original disapproval.
Moreover, if ITD has exclusive jurisdiction of its highways, it cannot say that its decisions are
dependent upon City ordinances.
To say it differently:
(a) ITD purportedly denies the application based upon a local land use decision.
(b) ITD's then suggests that Jacksons go seek relief from Meridian and then come
back to ITD.
(c) When Jacksons does just what ITD has told it to do, ITD then claims that
Meridian should deny the variance because ITD previously denied the application based upon
Meridian Land Use.
(d) That puts Jacksons in an untenable and incurable position. ITD denies based
upon a land use decision, tells Jacksons to go get relief from the land use decision maker, and
then recommends denial based upon original denial by the land use decision maker. This is an
endless and absurd situation.
2. In April 1989, ITD and a party named "Dobarans," (Jacksons' predecessors in interest)
entered into a stipulation for settlement of their ongoing condemnation dispute (ITD sued the
Dobarans for a right-of-way take), which resulted in a Second Judgment being entered by
District Judge Newhouse. This Second Judgment, among other things, granted to the
Dobarans, and their successors and assigns, the right to construct in the future, for
development purposes on the property, one or more accesses to Eagle Road.
- 1 -
RECEIVED
,- FEB 2 7 2007
City of Meridian
City Clerk Office
Clearly, ITD did not disclose the existence of the Second Judgment to Meridian in addressing
Jacksons' original application for this site. ITD's engineer, Dan Coonce failed to disclose to
Meridian that ITD had granted at least one if not two access points to the property Jacksons
now owns when he wrote to Meridian in 2005 on Jacksons' initial application indicating that
Meridian should deny Jacksons access to Eagle Road until Jacksons had applied first to ITD for
an encroachment permit. Those letters were submitted to Meridian on April 18, 2005, and April
20, 2005.
In ITD proceedings concerning Jacksons' variance request, the Hearing Officer issued a
preliminary order finding that the Second Judgment granted Jacksons a right of access onto
Eagle Road. The Director did not disagree with that determination in his overturning of the
Hearing Officer's order. Instead, the Director, in denying Jacksons' application instead
purportedly relied upon Meridian's prior decision to require Jacksons to remove access from
Eagle Road, which of course was the direct result of Coonce's correspondence to Meridian. The
existence of a right of access to Eagle Road as set forth in the Second Judgment, and conveyed
to Jacksons predecessor in interest, as consideration for a taking of property cannot be denied.
Jacksons has a judgment right to an Eagle Road access, which cannot be taken away simply by
the unusual and unilateral decision of the ITD Director.
Regardless of what transpired in the past, however, both ITD and Meridian are now aware of
the Second Judgment right of access. If the City (or ITD) takes this right away without just
compensation, then the matter is one of condemnation and of additional legal proceedings
required because of the taking of this right without due process or the payment of just
compensation. The additional legal proceeding would, of course, focus on how much Jacksons
should be paid for the taking of this valuable right.
It would seem a better way to proceed, now that this right of access is known by all parties, to
recognize the same and simply allow Jacksons the very limited access it has proposed, together
with the construction of the right turn lane that ITD claims is necessary, which Jacksons has
also proposed constructing. It must also be noted that the Hearing Officer has already
previously determined that Jacksons proposed limited right turn lane and combined
deceleration/right turn lane would improve safety at the site.
3. This matter merits a variance because ITD's actions have precluded Jacksons from
obtaining the right of access that it was entitled to at the time it made its initial application.
ITD's actions have now caused Jacksons to be subject to Meridian's new ordinance and new
regulations that were not even in effect at the time that Jacksons made its initial application.
4. The record before the City should reflect that Jacksons has come cooperatively before
the City to see if there is a solution and to properly follow appropriate and recommended
channels in seeking relief from unintended consequences. With all due respect, however, it
must be noted that the arbitrary actions of ITD raise issues of constitutional liability not only for
ITD, but also for the City. Thus, it must be set forth upon the record that Jacksons' appearance
and cooperation in these proceeding before the City do not serve to waive any right Jacksons
might have to assert enforcement of its Second Judgment right of access in future legal
proceedings or, if access is denied, to assert its right to just compensation for the unfair taking,
all of which rights are expressly reserved by Jacksons.
-2-