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HomeMy WebLinkAboutSpink Butler CommentsRichard H. Andrus JoAnn G. Butler T. Hethe Clark Lauren Maiers Keynoldson Michael T. Spink RECEIVED OCT 3 1 2007 City of Meridian City Clerk Office October 31, 2007 L'irt C-Mltil Mayor Tanury de Weerd Meridian City Council City oI Meridian 33 East Idaho Avenue 33 East Idaho Avenue Meridian, ID 83642-2300 Meridian, ID 83642-2300 RE: Emerson Park Commercial Subdivision (PP-07-014) SB File No. 22274.14 Dear Mayor and City Council Members: ._ .~_ i:,i,,~r~,,', ib.a,-,,,-- ,,~,, This fine represents Oaas Laney, LLC and Kuna Victory, LLC {collectively "Oaas Laney") on matters related to property in the proposed Emerson Park Commercial Subdivision (the "Propert}~") located at the northwest corner of Victory Road and Meridian Road. On Tuesday October 23, 2007, the City Council held a public hearing for preliminary plat approval of the Emerson Park Commercial Subdivision (City File PP-07-014). During the hearing, the Council heard extensive testimony regarding a proposed condition of approval (Condition 1.1.12) that would require Tim Mussell, the owner of Victory Greens and a tenant on a portion of the Property, to discontinue using an existing deeded access to Meridian Road (State Highway fi9). The deeded access allows entrance to Victnrv Greens at the north enci of the Property, and the condition would require the use to discontinue prior to final plat signature for the first phase of the development. During the hearing, Tim Mussell expressed concern about the proposed condition because his livelihood and business rely on the access, and the City has given assurances in the past that this access point would remain open until the portion of the Property including the access develops. Tim and Oaas Laney's predecessors in interest to the Property, as partial consideration fur the Idaho Transportation Department (ITD) "taking" a portion of the 251E FRONT STREET SUITE 200 PO. BOX 639 BOISE, IDAHO 83701 `~ .~ \\ 208-388-1000 208-388 loot (F~ W W W. SB-ATTORNEYS.COM Meridian Mayor and City Council Members October 31, ?007 Page 2 Property, expressly reserved the access point in a Warranty Deed to lTD recorded on Apri13, 1987.E Oaas Laney and Tim are willing to discontinue the use of this valuable deeded access, but they object to the timing proposed by staff. In 2UU3, Uaas Laney began the process of developing the Property when it sought approval far an annexation and rezone, a preliminary plat, and a conditional use permit that would allo~n~ existing uses to continue (collectively the "Mussel Corner Application"). During the Mussell Corner Application process, I'1'U submitted to the City its position regarding new proposed access points along Meridian Road associated with new consiTUCtfon on the Property. Oaas Laney wanted the existing deeded access to remain open until the area encompassing the access actually developed. Staff expressed concern with this desire because staff was "unaware of any mechanism th~~ City has that would enable [the City] to enforce the'temp~rary' nature" of the access. In short, staff wanted an assurance that the use would actually discontinue at a certain date. After considering the feedback from staff and ITD and the concerns of tJaas Laney and Tim Mussell, the Council deternuned and memorialized in the approvals and the Development Agreement that the access would remain open "until such area re-develops." The Council, Tim Mussell, and Oaas Laney clearly intended for the access to remain open undi development proceeded to the area of the Property that actually includes the access. The Development Agreement also provides a mechansm for timing the closure of the access. Oaas Laney and Tim Mussell agree with the City to discontinue using the deeded access, but the requirement to discontinue the use prior to final plat signature for Phase One is onerous, unfair, and contrary to the Development Agreement. Phase One of the development is located at the far southeastern portion of the Property and will not affect, or be affected by, the access. hi fact, not until Phase Three will the development affect, or be affected by, the existing access. Oaas Laney fully supports a condition requiring the access use to discontinue prior to final plat signature of the phase in the Emerson Park Subdivision that includes the access. Such a condition would comport with the original understanding and agreement reached between the City and Oaas Laney during the Mussell Corner Application as memorialized in the Development Agreement. It would also deal effectively with staff's concern far a mechanism to enforce the limited duration of the access. Although Oaas Laney fully supports a condition tied to the fugal plat of the phase that includes the access, Condition 3.17 already provides a mechanism to enforce the limited duration of the access. It requires Oaas Laney to install a gate and aKnox-Box at the access for use solely by the Meridian Fire Department. Installation of the gate and aKnox-Box would occur during the final plat approval process for the portion of the Property that includes the access, at which time, the use of the access for non-emergency vehicles would automatically cease. Staff indicated at the hearing on October 23 that Oaas Laney could simply seek a variance, and thereby effectively modify Condition 1.1.12. Although the staff's proposal appears to create a compromise by implying the variance application is a mere formality, staff told a representative ~ Instrument Nwnber 8719669. Meridian Mayor and City Council Members October 31, 2007 Page 3 for Oaas Laney that staff will not recommend approval of a variance request. We are not surprised because staff's proposal would require the Council to do something wider Idaho law and the City's ordinances that the Council cannot - grant a "variance" to a requirement unrelated to the unique physical characteristics on the subject property. Thus, the Council would be forced to reject Oaas Laney's application for a variance to modify Condition 1.1.12, nit because the request is unreasonable or unlawful, and not because the condition cannot be modified, but because a variance is the improper vehicle to obtain the modified condition. For the foregoing reasons, C)aas i.aney requests that the Council move M reconsider the approval of PP-07-014 (Emerson Park Subdivision) in order to revise Condition 1.1.12. Once the Council has reopened the approval for Emerson Park Subdivision, Oaas Laney further requests that the Cc~unci] move to revise Condition l .7.12 by requiring the access use to discontinue prior to fugal plat signature on the phase of Emerson Park Subdivision that includes the access. Representatives for Oaas Laney will be present at the Council meeting set far November 7, 2007 to discuss this matter with the Council. Sincerely, hichard H. Andrus RHA:kah c Clients (z>itt i'-rani[) - See ]daho Code 4 67-6516 (defining "variances" as only applying to bulk and placement standards for structures); Gey i~. County Coramissioncrs o(8w+nct~i[[e Counh~, 103 Idaho 626, 651 P.2d 560 (1982) (defining "variances" as limited to the adjustment of regulations due to the ph~•sical characteristics of a subject properh'); 1\leridian City Code § 1 ]- 5R-4 (allowing "variances" only tivhen it "relieves an undue hardship because of characteristics of the site") (emphasis adcieci). Page 1 of 1 Will Berg From: Kathy Hall [KHall@sb-attorneys.com] Sent: Wednesday, October 31, 2007 3:54 PM To: Will Berg Subject: Emerson Park Commercial Subdivision (PP-07-014) Attachments: Ltr to Meridian Mayor and Council.pdf Pursuant to an earlier telephone conversation I had with Peggy Gardner in Mayor de Weerd's office, please find attached a letter addressed to the Meridian Mayor and the City Council. I would appreciate you printing and delivering a copy of the letter to the Mayor and each of the Council members, and also including the letter on the CD that is prepared prior to the November 7, 2007 City Council meeting. Please let me know at your first opportunity if my understanding of this procedure is incorrect in any way, or if I need to do anything further. Thank you for your assistance. Kathy Hall, Assistant to Richard H. Andrus Spink Butler, LLP P. 0. Box 639 Boise, ID 83701 (208) 388-1000, Ext. 25 (208) 388-1001 (fax) khan@sb-attorneys corn CONFIDENTIALITY NOTICE: This transmission is intended only for the use of the individual(s) named as recipients. It may contain information that is privileged. confidential andlor protected from disclosure under applicable law including. but not limited to. the attorney client privilege and/or work product doctrine. If you are not the intended recipient of this transmission. please notify lire sender immediately by telephone. Do not deliver. distribute or copy this transmission disclose its contents or take any action in reliance on the information d contains 11 /1 /2007