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Home My WebLink AboutLetters WHITE PETERSON WxiTE, PETERSOrr, MORROW, GIGRAY, :EZOSSMAN, NYE & ROSSMAN, P.A. Kavur E. Duatus CHItiSTOPHI3R S. NYE ATTORNEYS AT LAW MERIDIAN OFFICE JULtE KLEIN FLSCI~R PHILiP A. PETERSON WM. F. GIORAY, III ERICA S. PHILLIPS 200 EAST CARLTON AVENUE T. GuY Hru.LAtrI ERIC S. ROSSMAN CANYON PARK AT THE; IDAHO CENTER SUITE 31 D. SAMUEL JOFINSON Tonn A. RossMAN 5700 EAST FRANKLIN ROAD, SUITE 200 PosT OFFICE Box 1150 LARRY D. MOORE DAVro M. $WARTLEY NAtv>PA, IDAHO 83687-8402 MERIDIAN, IDAHO 83680-I 150 Wu.I.IAn-c A. MoRROw Tr~Rt~ICE R. WHITE" TEL. (208) 288-2499 Wu.LlAtrt F. NlcxoLS* NlcxoLAS L. WOLLHN TEL (208) 466-9272 FAX (208) 288-2501 FAx(208)466-4405 'Also admitted in OR PLEASE REPLY TO "s Also admitted in WA NAMPA OFFICE January 9, 2002 Will Berg, City Clerlc, City of Meridian 33 E. Idaho Meridian ID 83642 Re: AVEST v City of Meridian CV OC 0107908D Copies enclosed In response to your request. For your approval or correction and comments. _X For your information. For your file. No action is required by you. REMARKS: RECEZV~D JAN ~ 0 ~~ City of Meridian City Clerk Offioe Please find enclosed a copy of a Statement of Issues for Judicial Review filed by David M. Penny, attorney for Petitioners Very truly yours, Liz Yeary Assistant to Chris S. Nye ey/Z:\Work\M\Meridien\Avest v 19648\enclosure.wpd DAVID M. PENNY, ESQ. COSFIO, HUNII'PIREY, GREENEfi & WELSH, P.A. S 15 West Washin~on Street $oise, Idaho 83702 Telephone: (208) 344-7811 Facsimile: (208) 338-3290 ISB #3631 Attorneys for Petitioner RECEIVED JAN 1 ~ 200? City of Meridian City Clerk OfficF IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA A'VEST LMTED PARTNERSHIP, ) an Idaho Limited Fattnership ) Petitioner, ) V5. ) THE CITY OF MERIDT.AN, IDAHO ) and its CITY COUNC]L, ) 12espondents. ) CASE NO. CV OC 010790SD STA'Y'EMENT OF ISSUES FOR JUDICIAI, RE'VTE'VY COMES NOW the above named Petitioner by and through its attorney of record, David M. Penny of Cosho Humphrey Greener & Welsh PA, and pursuant to the provisions of I.R.C.P. 84(f)(5), submits the following Statement of Issues for Judicial 12eview in this matter. A. The following Findings of Fact contained in the Council's November 7, 2001 Findings of Fact and Conclusions of Law and Decision and Order Denying Conditional Use Permit were not supported by substantial competent evidence: 11. The use proposed within the subject application will be hazardous STATEMENT OF ISSUES k'OIi JUDICIAL ~'VTEW -Page 1 and will be disturbing to existing or future neighborhood uses; 13. The use proposed within the subject application will involve uses, activities, processes, materials, equipment and conditions of operations that will be detriments] to persons, property and/or the general welfare by reasons of excessive production of traffic...; 15. The proposed use, along with the existing heavy traffic in the general area would add to the traffic concerns and public safety; and 16. The proposed use would be incompatible with the existing businesses. B. That the following Conclusions of Law contained in the Council's November 7, 2001 Findings of Fact and Conclusions of Law and Decision and Order Denying Conditional Use Permit were not supported by substantial competent evidence: 1. That the above named applicant is denied a conditional use permit specifically due to the ;fact that the proposed use, along with the existing heavy traffic in the general are, would add to the traffic concerns and public safety, and would be an incompatible use; and 3. In order to obtain approval of the requested drive through, the applicant will have to propose a different design that will eliminate the potentially hazardous intersection with the existing drive through lane that serves the TCBX business on the west end of the building. C. That the Meridian City Council in denying the Petitioner's requested Conditional Use Permit (a) abused its discretion; (b) acted in an arbitrary and capricious manner; (c) violated Petitioner's statutoryrights; (d) violated Petitioner's constitutional due process and equal protection rights; (e) acted upon unlawful procedure; and (f) prejudiced substantial rights of the Petitioner by: 1, The Council's failure to grant said requested Conditional Use Permit even though the same was in compliance and harmony with the City STATEMENT OF ISSUES FOR JUDYCIAL REV~W -Page 2 of Meridian's Comprehensive Plan and Zoning and Development Ordinance; 2. The Council's failure to grant said requested Conditional Use Permit based upon the record presented to and considered by the Council; 3. The Council's failure to act on the Petitioner's October 17, 2001 request for Reconsideration of the Council's denial of the requested Conditional Use Permit; 4. The Council's failure to grant the Petitioner's November 7, 2001 request that the Council defer any hearing on this matter because the full Council ruould not be present at the November 7, 2001 scheduled hearing; 5. The Council's refusal to Brant Petitioner's request for statutory mediation, filed November 12, 2001; and 6. The Council's imposition of conditional terms in the denial of Petitioner's requested Conditional Use Permit instead of imposing the same terms as conditions for the approval of said Conditional Use Permit. Pursuant to the provisions of LR.C.P. 84(f)(5) Petitioner reserves the right to assert other issues later discovered. DATED this ~~ day of December, 2001. COSHO, H'CTMPHRE'Y, CrR}JENER & WELSH P.A. ~~~ •~~ 1 f 1 .I'~ '^ BY: //////~~I~~I _ STATEMENT OF IS5UES FOR JUDICIAx~ REVA~W -Page 3 :, CERTIFICATE OF SERVICE I HEREBY CERTIFY That on tl~e ? ~ day of December, 2001, a true and correct copy of the above and foregoing document was served by: William F. Nichols WH1TE PETERSON 5700 E. Franklin Road, Suite 200 Nampa, Ydaho 83687-8402 Robert Carrie, Mayor City of Meridian City Mall 33 E. Idaho Avenue Meridian, Idaho 83642 ,~ -.. ,~; - STATEMENT OF ISSUES F4R JUDICIAL REVIEW -page 4 U.S. Mail ~X Facsizxaile X56-SOS Hand Delivery U.S.IV,[ai] __ Facsimile Hand Delivery TOTAL Po®S WHITE PETERSON WHITE, PETERSON, MORROW, GIGRAY, ROSSMAN, NYE & ROSSMAN, P.A. ATTORNEYS AT LAW KEVIN E. DINIUS CHRISTOPHER $. NYE JULIE KLEIN FISCHER PHILIP A. PETERSON WM. F. GIGRAY, III ERICA S. PHILLIPS T. GUY HALLAM, JR.* ERIC S. ROSSMAN D. SAMUEL ]OHNSON TODD A. ROSSMAN ]ILL S. JURRIES DAVID M. SWARTLEY LARRY D. MOORE TERRENCE R. WHITE** WILLIAM A. MORROW NICHOLAS L. WOLLEN WILLIAM F. NICHOLS* 'ALSO ADMITTED IN OR ••ALSO ADMITTED IN WA CANYON PARK AT THE IDAHO CENTER 5700 EAST FRANKLIN ROAD, SUITE 200 NAMPA, IDAHO 83687-8402 TEL (208) 466-9272 FAX (208) 466-4405 Email via Internet: wfg@wpptng.com January 9, 2002 MERIDIAN OFFICE 200 EAST CARLTON AVENUE SUITE 31 POST OFFICE BOX 1150 MERIDIAN, IDAHO 83680-1150 TEL (208) 288-2499 FAX (208) 288.2501 RE~EIVlEI~ Will Berg, City Clerk ~~~ : t$~"I~`~ City of Meridian 33 E. Idaho City of Meridian Meridian ID 83642 City Clerk Offie~ Re: Avest Parntership v City of Meridian judicial Review Dear Will: PLEASE REPLY TO NAMPA OFFICE As you know a Petition for Judicial Review in the above referenced matter has been filed which involves the City Council's denial of Avest's application for a conditional use permit which was acted upon by the City Council on November 7, 2001. At this time the procedures required to be followed are governed under Idaho Rules of Civil Procedure which requires the estimate of the Clerk's Record and Transcript, the production of the Clerk's Record and Transcript of proceedings and then the settlement of the record, then the Petitioners must file a brief then the City files a reply brief to which the Petitioners can then file a responsive brief. The Court can then decide whether or not it seeks oral argument. Then the matter is decided by the Judge. There is no trial. We need the transcripts of all the hearings in this matter, both before Planning and Zoning Commission and City Council. Please provide me with estimated costs for transcribing these hearings as soon as possible. I look forward to an early response. Very truly yours, -- Christopher S. Nye Copy: City Clerk ey/Z:\Work\M\Meridian\Avest v 19648\CltJan9ltr.wpd WHITE PETERSON WHITE, PETERSON, MORROW, GIGRAY, ROSSMAN, NYE & ROSSMAN, P.A. ATTORNEYS AT LAW KEVIN E. DINIUS CHRISTOPHER $. NYE ]ULIE KEEIN FISCHER PHILIP A. PETERSON WM. F GIGRAY, III ERICA S. PHILLIPS T. GUY HALLAM, ]R.' ERIC S. ROSSMAN D. SAMUEL ]OHNSON TODD A. ROSSMAN ]ILL S. ]URRIES DAVID M. SWARTLEY LARRY D. MOORS TERAENCE R. WHITE" WILLIAM A. MORROW NICHOLAS L. WOLLEN WILLIAM F. NICHOLS' •ALSO ADMITTED IN OR ••ALSO ADMITTED IN WA CANYON PARK AT THE IDAHO CENTER 5700 EAST FRANKLIN ROAD, SU[TE 200 NAMPA, IDAHO 83687-8402 TEL (208) 466-9272 FAX (208) 466.4405 Email via Internet: wfg@wppmg.com January 9, 2002 MERIDIAN OFFICE 200 EAST CARLTON AVENUE SUITE 3l POST OFFICE BOX 1150 MERIDIAN. IDAHO 83680.1150 TEL (208) 288.2499 FAX (208) 288-2501 RECEDED Will Berg, City Clerk ~~,y ~ ~ ~~~Z City of Meridian 33 E. Idaho City of Meridian Meridian ID 83642 City Clerk Office Re: Avest Parntership v City of Meridian Judicial Review Dear Will: PLEASE REPLY TO NAMPA OFFICE As you know a Fetition for Judicial Review in the above referenced matter has been filed which involves the City Council's denial of Avest's application for a conditional use permit which was acted upon by the City Council on November 7, 2001. At this time the procedures required to be followed are governed under Idaho Rules of Civil Procedure which requires the estimate of the Clerk's Record and Transcript, the production of the Clerk's Record and Transcript of proceedings and then the settlement of the record, then the Petitioners must fzle a brief then the City fides a reply brief to which the Petitioners can then file a responsive brief. The Court can then decide whether or not it seeks oral argument. Then the matter is decided by the Judge. There is no trial. We need the transcripts of all the hearings in this matter, both before Planning and Zoning Commission and City Council. Please provide me with estimated costs for transcribing these hearings as soon as possible. I look forward to an early response. ,~ ~~ ~ Very truly yours, Q p ~' ~ ,~i Christopher S. Nye Copy: City Cleric ey/Z:\Work\M\Meridian\Avest v 19648\CltJan9ltr.wpd ~~~~~,~, a,~,~a DAVID M. PENNY, ESQ. COSHO, HUMPHREY, GREENER & WELSH, P.A. 815 West Washington Street Boise, Idaho 83702 Telephone: (208) 344-7811 Facsimile: (208) 338-3290 ISB #3631 Attorneys for Petitioner o~c o k zoos MA~QRS ®FFICE CIr'~x Cr' I~Z:Rlk;~t=.N IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA AVEST LIMITED PARTNERSHIP, an Idaho Limited Partnership Petitioner, CASE N(4+C V ~ ~ ~ ~, ~ 7 vs. THE CITY OF MERIDIAN, IDAHO and its CITY COUNCIL, Respondents. SUMMONS NOTICE: YOU HAVE BEEN SUED BY THE ABOVE NAMED PETITIONER. THE COURT MAY ENTER JUDGMENT AGAINST YOU WITHOUT FURTHER NOTICE UNLESS YOU RESPOND WTTHIN 20 DAYS. READ THE INFORMATION BELOW. TO: The City of Meridian, Idaho and its City Council You are hereby notified that in order to defend this lawsuit, an appropriate written response must be filed with the above-designated court within 20 days after service of this Summons on you. If you fail to so respond the court may enter judgment against you as demanded by the petitioner(s) in the Complaint. A copy of the Complaint is served with this Summons. If you wish to seek the advice or representation by an attorney in this matter, you should do so promptly so that your written response, if any, may be filed in time and other legal rights protected. SUMMONS -Page 1 An appropriate written response requires compliance with Rule 10(a)(1) and other Idaho Rules of Civil Procedure and shall also include: 1. The title and number of this case. 2. If your response is an Answer to the Petition, it must contain admissions or denials of the separate allegations of the Petition and other defenses you may claim. 3. Your signature, mailing- address and telephone number, or the signature, mailing address and telephone number of your attorney. 4. Proof of mailing or delivery of a copy of your response to petitioner's attorney, as designated above. To determine whether you must pay a filing fee with your response, contact the Clerk of the above-named court. The nature of the action against you is for a judicial review. DATED this r' of December, 2001. CLERK OF THE DISTRICT COURT p ti, i~,l• STEV~/ART D ~ f', ~` r SUMMONS -Page 2 w -_;~ '~ IGY~ DAVID M. PENNY, ESQ. d~,@________..~..~~' _---~.- C®SPI®, HIJMPI-IRE~', GREENER & WEI.S~I, P.A. 815 West Washington Street ~~~; ~`~ ~: Boise, Idaho 83702 i elephone: (208) 344-7/81 1 i ~ ~A~~ 3~, y,~ ~ . , - _ Facsimile: (208) X38-3y90 ~;;,.;,~,,-Y ISB #3631 Attorneys for Petitioner I[~1 THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA AVEST LIMITED PARTNERSHIP, an Idaho Limited Partnership CASE N. ~; ~~, 4 ~ ~i i y ~e ~~, rj Petitioner, vs. THE CITY OF MERIDIAN, IDAHO and its CITY COUNCIL, Respondents. ~ETITI®N F®R JUDICIAL, REViEV(7 COME NOW the Petitioner above named, by and through their attorney of record, David M. Penny of Cosho Humphrey Greener & Welsh PA, and pursuant to the Administrative Procedure Act, Idaho Code § 67-5270 - 67-5279, Rule 84 of the Idaho Rules of Civil Procedure and Section 2-418 of the City of Meridian's Zoning and Development Ordinance, hereby petition this Court for judicial review of the October 2, October 16, November 7, and November 20, 2000 decisions of the City Council of Meridian, Idaho denying Petitioner's request for a Conditional Use Permit for the addition of a Drive-up window and Drive-Thni lane for a Moxie Java located at North PETITION FOR JUDICIAL REVIEW -Page 1 ~_, _ ~ , __ - ,_.: Locust Grove Road and East Loop Lane, Meridian, Idaho, failing to take action on Petitioner's request for reconsideration, and refusing mediation under IC §67-6510. Petitioner therefor alleges the following: 1. The Petitioner, AVEST LIMITED PARTNER5HIl', is an Idaho Limited Partnership and the owner of a Maxi Java located at North Locust Grove Road and East Loop Lane, Meridian, Idaho. 2. That on or about the 28`'' day of June, 2001, the Petitioner filed with the City of Meridian,- State of Idaho an Application for a Conditional Use Permit (CUP Ol - 026) for the addition of a Drive-up window and Drive-Thni lane for said Moxie Java. 3. That on, August 27, 2001, pursuant to the applicable provisions of the Meridian City Code, the Meridian Planning and Zoning Commission held a public hearing on Petitioner's request for CUP 01-026. 4. That on September 13, 2001, the Meridian Planning and Zoning Commission issued written Findings recommending to the Meridian City Council that Petitioner's Application for CUP 01-026 be denied. S. That on October 2 and October 16, 2001, pursuant to the applicable provisions of the Meridian City Code, the Meridian City Council held a public hearing on Petitioner's request for CUP 01-026. 6. That at the conclusion of that Meridian City Council public hearing, the Meridian City Council by a vote for 3 to 0 voted to deny Petitioner's requested CUP O1- 026 and requested the Meridian City Attorney to prepare the requisite Findings of Fact, Conclusions of Law and Order regarding the denial of Petitioner's requested CUP Ol- PETITION FOR JUDICIAL REVIEW -Page 2 026. 7. That on October 17, 2001, Petitioner by and through its developer, Dakota Company, Inc., an Idaho corporation having its principal place of business in Boise, Idaho, requested in writing that the Meridian City Council reconsider its denial of Petitioner's requested CUP 01-026. 8. That Petitioner was subsequently notified that the Meridian City Council had set a hearing for November 7, 2001 for the City Council to approve and adopt the Findings of Fact, Conclusions of Law and Order regarding the denial of Petitioner's requested CUP 01-026. 9. That prior to said scheduled November 7, 2001 City council meeting, the Petitioner on November 7, 2000, by and through its developer, Dakota Company, Inc., hand delivered to the Meridian City Clerk a written request that the City Council defer any action of Petitioner's requested CUP 01-026 due to the fact that a full City Council was not going to be present at that Council meeting. 10. That at said November 7, 2001 Council Meeting the City Council voted to deny Petitioner's request to defer any action on its requested CUP 01-026 despite the fact that the City Council voted to approve all other requests for deferral on matters~pending before that Council meeting. 11. That at said November 7, 2001 Council Meeting the City Council failed to take any action on Petitioner's request that the Meridian City Council reconsider its denial of Petitioner's requested CUP 01-026 and voted 3 to 0 to approve and adopt the Findings of Fact, Conclusions of Law and Order regarding the denial of Petitioner's PETITION FOR JUDICIAL REVIEW -Page 3 requested CUP O 1-026. 12. That on November 12, 2001, Petitioner, by and though its developer, Dakota Company, Inc. served a written request on the Meridian City Clerk requesting mediation, pursuant to the provisions of I.C. § 67-6~ 10, to mediate the denial of Petitioner's requested CUP Application. 13. That the City Council, at a November 20, 2001 Council Meeting, determined that the mediation provisions of I.C. §67-6510 were not applicable and voted 3 to 0 to deny Petitioner's request for mediation. 14. That Petitioner is informed and believes that all of the above referenced public hearings of the Meridian County Planning and Zoning Commission were recorded via audiotapes which are currently in the possession of the Planning and Zoning Administrator and/or the City Clerk. 15. That Petitioner is informed- and believe that the above referenced public hearing and Council meetings of the Meridian City Council were recorded via audiotape which is currently in the possession of Meridian City Clerk. 16. That the Meridian City Council's decision to deny the requested CUP Ol- 026 prejudiced substantial rights of the Petitioner and is in violation of the City of Meridian's Zoning and Development ®rdinance. 17. That the decision and the Meridian City Council' s findings and conclusions in support thereof were (a) in violation of constitutional or statutory provisions, (b) in excess of the Meridian City Council's statutory authority, (c) made upon unlawful procedure, (d) not supported by substantial evidence on the record as a PETITION FOR JUDICIAL REVIEW -Page 4 whole, and/or (e) arbitrary, capricious or an abuse of discretion. 18. A statement of the issues for which judicial review is sought herein will be filed separately within 14 days after the tiling of this Petition. WHEREFORE, Petitioner prays for relief as follows: For an Order setting aside the decision of the Meridian City Council denying Petitioner's requested CUP 01-026. 2. For an Order compelling the City of Meridian to participate in mediation under IC §67-6510. 3. For attorney's fees and costs of suit pursuant to IC § 12-120, 12-121 and IRCP 56; and 4. For such other and further relief as to the court may seem just. DATED this day of December, 2001. COSHO, HUMPHREY, GREENER & WELSH P.A. B Y~ ._._ ---_...__~ David M. Penny _ _ .,, __._.~ - Attorney for Petitioner-- PETITION FOR 7UDICIAL REVIEW -Page ~ V~RI~'ICAT'ION STATE OF IDAHO ) 5S. County of Ada ) ROB HAGGETT, being first duly sworn, deposes and says: That he is the General Property Manager for Petitioner AVEST Limited Partnership in the above-entitled action; that he has read the within and foregoing Petition for Judicial Review, knows the contents thereof, and that the facts therein stated are true as he verily believes. '~i,~s.~ ROB HAGGETT SU ~ID ~ ~ ~ ~ AND SWORN To before me this ~ day of December, 2001. eoy@ ~~ 1 w b,, a -e~.....~Y ,, `" ~y ~ c e ~ ~° . ~ d 'TJ i ~ • Qy O ` $ ~ ' '-' ~ ~ ~ ~' w ~ " ~ 6 Notary Pub for Idaho . ~ ®'y s b y~ m e ® Residing at ,Idaho ~~` s®~~ ~~,~o `°~~.~~~,,,,. Commission expires ~ ~4 1 6d ~ P ~6 O~Q ~®® b~RImRRRR®Bwe PETITION FOR JUDICIAL REVIEW -Page 6 :~ Telephone: (208) 344-7811 Facsimile: (208) 338-3290 ISB #3631 DAVID M. PENNY, ESQ. COSHO, HUMPHREY, GREENER & WELSH, P.A. 815 West Washington Street Boise, Idaho 83702 Attorneys for Petitioner OTC 0 4 2G01 1VLAYORS OFFICE ci~~ ca gi~.Ra:~aasv IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA AVEST LIMITED PARTNERSHIP, ) an Idaho Limited Partnership ) Petitioner, ) vs. ) THE CITY OF MERIDIAN, IDAHO ) and its CITY COUNCIL, ) Respondents. ) CASEN(lky Ul, OT ~~~ ~~~ SUMMONS NOTICE: YOU HAVE BEEN SUED BY THE ABOVE NAMED PETITIONER. THE COURT MAY ENTER JUDGMENT AGAINST YOU WITHOUT FURTHER NOTICE UNLESS YOU RESPOND WITHIN 20 DAYS. READ THE INFORMATION BELOW. TO: The City of Meridian, Idaho and its City Council You are hereby notified that in order to defend this lawsuit, an appropriate written response must be filed with the above-designated court within 20 days after service of this Summons on you. If you fail to so respond the court may enter judgment against you as demanded by the petitioner(s) in the Complaint. A copy of the Complaint is served with this Summons. If you wish to seek the advice or representation by an attorney in this matter, you should do so promptly so that your written response, if any, may be filed in time and other legal rights protected. SUMMONS -Page 1 An appropriate written response requires compliance with Rule 10(a)(1) and other Idaho Rules of Civil Procedure and shall also include: 1. The title and number of this case. 2. If your response is an Answer to the Petition, it must contain admissions or denials of the separate allegations of the Petition and other defenses you may claim. 3. Your signature, mailing address and telephone number, or the signature, mailing address and telephone number of your attorney. 4. Proof of mailing or delivery of a copy of your response to petitioner's attorney, as designated above.. To determine whether you must pay a filing fee with your response, contact the Clerk of the above-named court. The nature of the action against you is for a judicial review. DATED this ~' of December, 2001. CLERK OF THE DISTRICT COURT fl..STEU'JART D ~ ~: ~~~r- ;~, SUMMONS -Page 2 s `F ~~,,/f!]~ !~ .~, a 1r.~ DAVID M. PENNY, ESQ. ~,t,,y.________... ' ~ . _.--_~ C®SHQ, HUMPHRE~', GREENER tE WEL,SH, P.~. 816 West Washington Street ~ ~ ~~ ~'- ~'~ ~~ Boise, Idaho 83702 Telephone: (208) 344-781 ~, ~ ~• :: ~~.~ •~> ~ ~etk 1 d. e,A~ ~~ ~'•.. .~= 17 t'4~~ 4 Facsimile: (208) 338-3290 D i ~~ `~'~' a'~`r.~t~` ISB #3631 J~=u?v Attorneys for Petitioner IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA AVEST LIMITED PARTNERSHIP, ) an Idaho Limited Partnership ) Petitioner, ) vs. ) THE CITY OF MERIDIAN, IDAHO ) and its CITY COUNCIL, ) Respondents. ) ~~ . CASE N~. J `9 PETITI®N FOR JUDICIAL, REVIEW COME NOW the Petitioner above named, by and through their attorney of record, David M. Penny of Cosho Humphrey Greener &~ Welsh PA, and pursuant to the Administrative Procedure Act, Idaho Code § 67-5270 - 67-5279, Rule 84 of the Idaho Rules of Civil Procedure and Section 2-418 of the City of Meridian's Zoning and Development Ordinance, hereby petition this Court for judicial review of the October 2, October 16, November 7, and November 20, 2000 decisions of the City Council of Meridian, Idaho denying Petitioner's request for a Conditional Use Permit for the addition of a Drive-up window and Drive-Thru lane for a Moxie Java located at North PETITION FOR JUDICIAL REVIEW -Page 1 ~... ~-. ~~`,, i . '~I it ~~,. Locust Grove Road and East Loop Lane, Meridian, Idaho, failing to take action on Petitioner's request for reconsideration, and refusing mediation under IC §67-6510 Petitioner therefor alleges the following: 1. The Petitioner, AVEST LMTED PARTNERSHIP, is an Idaho Limited Partnership and the owner of a Maxi Sava located at North Locust Grove Road and East Loop Lane, Meridian, Idaho. 2. That on or about the 28`~ day of June, 2001, the Petitioner filed with the City of Meridian, State of Idaho an Application for a Conditional Use Permit (CUP O1- 026) for the addition- of aDrive-up window and Drive-Thru lane for said Moxie Java. 3. That on, August 27, 2001, pursuant to the applicable provisions of the Meridian City Code, the Meridian Planning and Zoning Commission held a public hearing on Petitioner's request for CUP 01-026. 4. That on September 13, 2001, the Meridian Planning and Zoning Commission issued written Findings recommending to the Meridian City Council that Petitioner's Application for CUP 01-026 be denied. 5. That on October 2 and October 16, 2001, pursuant to the applicable provisions of the Meridian City Code, the Meridian City Council held a public hearing on Petitioner's request for CUP 01-026. 6. That at the conclusion of that Meridian City Council public hearing, the Meridian City Council by a vote for 3 to 0 voted to deny Petitioner's requested CUP Ol- 026 and requested the Meridian City Attorney to prepare the requisite Findings of Fact, Conclusions of Law and Order regarding the denial of Petitioner's requested CUP O1- PETITION FOR JUDICIAL REVIEW -Page 2 026. 7. That on October 17, 2001, Petitioner by and through its developer, Dakota Company, Inc., an Idaho corporation having its principal place of business in Boise, Idaho, requested in writing that the Meridian City Council reconsider its denial of Petitioner's requested CUP 01-026. That Petitioner was subsequently notified that the Meridian City Council had set a hearing for November 7, 2001 for the City Council to approve and adopt the Findings of Fact, Conclusions of Law and Order regarding the denial of Petitioner's requested CUP 01-026. 9. That prior to said scheduled November 7, 2001 City council meeting, the Petitioner on November 7, 2000, by and through its developer, Dakota Company, Inc., hand delivered to the Meridian City Clerk a written request that the City Council defer any action of Petitioner's requested CUP 01-026 due to the fact that a full City Council was not going to be present at that Council meeting. 10. That at said November 7, 2001 Council Meeting the City Council voted to deny Petitioner's request to defer any action on its requested CUP 01-026 despite the fact that the City Council voted to approve all other requests for deferral on matters pending before that Council meeting. 11. That at said November 7, 2001 Council Meeting the City Council failed to take any action on Petitioner's request that the Meridian City Council reconsider its denial of Petitioner's requested CUP 01-026 and voted 3 to 0 to approve and adopt the Findings of Fact, Conclusions of Law and Order regazding the denial of Petitioner's PETITION FOR JUDICIAL REVIEW -Page 3 requested CUP 01-026. 12. That on November 12, 2001, Petitioner, by and though its developer, Dakota Company, Inc. served a written request on the Meridian Ciry Clerk requesting mediation, pursuant to the provisions of I.C. § 67-6510, to mediate the denial of Petitioner's requested CUP Application. 13. That .the City Council, at a November 20, 2001 Council Meeting, determined that the mediation provisions of I.C. §67-6510 were not applicable and voted 3 to 0 to deny Petitioner's request for mediation. 14. That Petitioner is informed and believes that all of the above referenced public hearings of the Meridian County Planning and Zoning Commission were recorded via audiotapes which are currently in the possession of the Planning and Zoning Administrator and/or the City Clerk. 15. That Petitioner is informed and believe that the above referenced public hearing and Council meetings of the Meridian City Council were recorded via audiotape which is currently in the possession of Meridian City Clerk. 16. That the Meridian City Council's decision to deny the requested CUP Ol- 026 prejudiced substantial rights of the Petitioner and is in violation of the City of Meridian's Zoning and Development Ordinance. 17. That the decision and the Meridian City Council's findings and conclusions in support thereof were (a) in violation of constitutional or statutory provisions, (b) in excess of the Meridian City Council's statutory authority, (c) made upon unlawful procedure, (d) not supported by substantial evidence on the record as a PETITION FOR JUDICIAL REVIEW -Page 4 whole, and/or (e) arbitrary, capricious or an abuse of discretion. 18. A statement of the issues for which judicial review is sought herein will be filed separately within 14 days after the filing of this Petition. WHEREFORE, Petitioner prays for relief as follows: 1. For an Order setting aside the decision of the Meridian City Council denying Petitioner's requested CUP 01-026. 2. For an Order compelling the City of Meridian to participate in mediation under IC §67-6~ 10. 3. For attorney's fees and costs of suit pursuant to IC § 12-120, 12-121 and - IRCP 56; and 4. For such other and further relief as to the court may seem just. ~-~ DATED this day of December, 2001. COSHO, HUMPHREY, GREENER & WELSH P.A. B Y~ = -~ David M. Penny _ _, _ -- Attorney for Petitioner - PETITION FOR JUDICIAL REVIEW -Page 5 VERIFICATION STATE OF IDAHO ) ss. County of Ada ) ROB HAGGETT, being first duly sworn, deposes and says: That he is the General Property Manager for Petitioner AVEST Limited Partnership in the above-entitled action; that he has read the within and foregoing Petition for Judicial Review, lmows the contents thereof, and that the facts therein stated are true as he verily believes. ROB HAGGETT SH$S~ID~~AND SWORN To before me this ~ day of December, 2001. ' I ~' oa,S S CI c '~ •:= ='~~ m I o = • • 0 n ~ ~ a ~ ,~ : d : Notary Pub ' for Idaho ~ w~ e ~ ~ • • ~, • • YJ Residing at ,Idaho Pd ••••••w•• ~ ,,e• e ~ 1 ~' `°r Commission expires ~ m * e ,Beo~~~0~60~~eZ~~6oe PETITION FOR JUDICIAL REVIEW -Page 6 WHITE PETERSON MoRROw, GIGRAY, ROSSMAN, NYE & ROSSMAN, P.A. PETERSON WI~rE , , Kavrrr E. Duatus CHBL4TOPF~R S. NY6 ATTORNEYS AT LAW MERIDIAN OFFICE Jtn.12 Ki.ssr Ftsc~t Ptm.iP A. PSTaRSOx 200 EASr CAtu.rox AveNt~e WM. F. GiaRAY, In EtucA S. P~.L>PS CANYON PARK AT THE IDAHO CENTER SvrrE 31 T. GuY Hau.nM Extc S. RosstaAx 5700 EAST FRANKLIN ROAD, SUITE 200 Posr OPPtce Box 1150 D. $AMUSL dotsrsox TODD A. RossMAx MERIDIAN, IDAHO 83680-i I50 LARxY D. MooRa DAVID M. SWARTLBY NAIvIPA, IDAHO 83687-8402 TEL. (208) 288-2499 WII.LiAM A. MORROW T>~z~rce R. WHIxe** FAX (208) 288-2501 WuauM F. Nicxoi.s* Nlcxot.AAS L. Woutar TR[. (208)466-9272 FAx (208) 466.4405 *Also admitted in OR PLEASE REPLY TO ** Also admitted in WA NAMPA OFFICE January 15, 2002 Will Berg, City Clerk, City of Meridian 33 E. Idaho Meridian ID 83642 Re: AVEST v City of Meridian CV OC OI07908D Copies enclosed In response to your request. For your approval or correction and comments. X For your information. For your file. No action is required by you. REMARKS: RECEIVED . ~ f ~-ti ~ y ' ~ 1 ~~'~'~2 City of Meridian City Clerk Office Please find enclosed a copy of an Answer which was filed today and which was also sent to David Penny. Very truly yours, U`~ Liz Yeary, egal Assistant to Christopher S. Nye ey/Z:\Work\M\Meridian\Avest v 19648\cmclosure.wpd RECEIVED .a ~,. ~; 'c ~ ~00~ City of Meridian - City Clerk Offioe Christopher S. Nye ISB No. 2886 WHITE PETERSON 5700 E. Franklin Rd., Suite 200 Nampa, Idaho 83687-8402 Phone: (208) 466-9272 Fax: (208) 466-4405 email: can@whitepeterson.com Attorneys for Respondent IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA In the Matter of AVEST LIMITED PARTNERSHIP, an Idaho limited partnership, CASE NO. CV OC 0107908D ANSWER Petitioner, vs. THE CITY OF MERIDIAN, IDAHO and its CITY COUNCIL, Respondent. ;~ {/\J~ u ~ r ~... _. ~ ~ ~~` ~,,; COMES NOW City of Meridian by and through its attorney of record, Christopher S. Nye of the White Peterson law firm and in answer to Petitioner's Petition, on file herein, ADMITS, DENIES AND ALLEGES as follows: ANSWER - 1 1. Respondent admits the allegations contained in Paragraph I of Petitioner's Petition, on file herein. 2. Respondent admits the allegations contained in Paragraph 2 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. 3. Respondent admits the allegations contained in Paragraph 3 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. 4. Respondent admits the allegations contained in Paragraph 4 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. 5. Respondent admits the allegations contained in Paragraph 5 of Petitioner's Petition, on file herein but has not confirmed the specific dates set forth in this paragraph. 6. Respondent admits the substance of the allegations contained in Paragraph 6 of Petitioner's Petition, on file herein but has not confirmed the specific dates set forth in this paragraph. 7. Respondent admits the substance of the allegations contained in Paragraph 7 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. ANSWER - 2 8. Respondent admits the substance of the allegations contained in Paragraph 8 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. 9. Respondent admits the substance of the allegations contained in Paragraph 9 of Petitioner's Petition, on file herein but has not confirmed the specific dates set forth in this paragraph. 10. Respondent admits the substance of the allegations contained in Paragraph 10 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. 11. As to paragraph 11, Respondent admits the Council voted 3-0 to adopt and approve the Findings of Fact and Conclusions of Law regarding the denial of Petitioner's requested CUP-O1-026. 12. Respondent admits the allegations contained in Paragraph 12 of Petitioner's Petition, on file herein. 13. As to Paragraph 13, Respondent admits Meridian Petition for judicial review is the proper remedy for Petitioner's Request. 14. Respondent admits the allegations contained in Paragraph 14 of Petitioner's Petition, on file herein. 15. Respondent admits the allegations contained in Paragraph 15 of Petitioner's Petition, on file herein. ANSWER - 3 16. Respondent denies the allegations contained in Paragraph 16 of Petitioner's Petition, on file herein. 17. Respondent denies the allegations contained in Paragraph 17 of Petitioner's Petition, on file herein. WHEREFORE, Respondent prays for relief as follows: 1. That Plaintiff s petition be dismissed; and 2. For an order for attorneys' fees and costs pursuant to Idaho Code §12-120, 12-121 and IRCP 56; and 3. For such other and further relief as to the court may seem just. DATED this ~ day of , 20[ZL WHITE, P ERSON By Christopher S. Nye Attorneys for Respondent ANSWER - 4 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the above and foregoing Answer was served upon the following: David M. Penny Esq. Cosho, Humphrey, Greener ~ Welsh, P.A. 81 S W. Washington, Boise ID 83702: [_X_] United States mail, postage prepaid [] Facsimile transmission [ ) Hand delivery ~w~., this ~~' day of ~ ~~_~,,,L, 20°" ~~ ,~ Christopher S. Nye ey/Z:\work\M\Meridian\Avest v 19648\Ar-swer.wpd ANSWER - 5 WHITE PETERSON MoRROw, GIGRAY, ROSSMAN, NYE & ROSSMAN, P.A. WI-IlTE PE~xsON , , KEV¢~r E. D¢m[s C[fltrsror[mn S. NYS ATTORNEYS AT Law MERIDIAN OFFICE Jv[.m KLew F[sc~t Pt~.~ A Ps[~tsox 200 EnsT CARLTON Av~n~S WM. F. G[OxAY, III ERICA S. P[mtms CANYON PARK AT THE IDAHO CENTER Sv[Te 31 T. GuY H a[.LnM Eatc S. Roses STJTfE 200 5700 EAST FRANKLIN ROAD Posy O~[ce Box 1150 D. SAM[[s[. JOHNSON TODD A, R0391wfAN , MERIDIAN, IDAHO83680-1150 LARRY D. MooRE DAVrD M. SwARTLSY NAI~A, IDAHO 83687-8402 TEL. (208) 288-2499 WuuAnt A. MORROW THRRHNCE R WHrre•• FAX (208) 288-2501 Wn.IaArrt F. N[cxo[s' N[cxo[.AS L. WOI.I.ffiQ Try. (208)466-9272 FAx (208)466-0405 'Also admitted in OR PLEASE REPLY TO •• Also admitted is WA NAMPA OFFICE January 15, 2002 Will Berg, City Clerk, City of Meridian 33 E. Idaho Meridian ID 83642 Re: AVEST v City of Meridian CV OC 0107908D Copies enclosed In response to your request. For your approval or correction and comments. _X For your information. For your file. No action is required by you. REMARIGS: RECEI~TED JA ~ 1 ~ ~~02 City of Meridian City Clerk Office Please find enclosed a copy of an Answer which was filed today and which was also sent to David Penny. Very truly yours, ~~ Liz Yeary, egal Assistant to Christopher S. Nye ey/Z:\Work\M1Meridieu\Avest v 19648\enclosure.wpd RECFI~ED ~~,~~ ~ s ?002 City of Meridian. - City Clerk Offioe Christopher S. Nye ISB No. 2886 WHITE PETERSON 5700 E. Franklin Rd., Suite 200 Nampa, Idaho 83687-8402 Phone: (208) 466-9272 Fax: (208) 466-4405 email: can@whitepeterson.com Attorneys for Respondent IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA In the Matter of AVEST LIMITED PARTNERSHIP, an Idaho limited partnership, CASE NO. CV OC 0107908D ANSWER Petitioner, vs. THE CITY OF MERIDIAN, IDAHO and its CITY COUNCIL, Respondent. L ~, ~ ,~ COMES NOW City of Meridian by and through its attorney of record, Christopher S. Nye of the White Peterson law firm and in answer to Petitioner's Petition, on file herein, ADMITS, DENIES AND ALLEGES as follows: ANSWER - 1 Respondent admits the allegations contained in Paragraph 1 of Petitioner's Petition, on file herein. 2. Respondent admits the allegations contained in Paragraph 2 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. 3. Respondent admits the allegations contained in Paragraph 3 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. 4. Respondent admits the allegations contained in Paragraph 4 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. S. Respondent admits the allegations contained in Paragraph 5 of Petitioner's Petition, on file herein but has not confirmed the specific dates set forth in this paragraph. 6. Respondent admits the substance of the allegations contained in Paragraph 6 of Petitioner's Petition, on file herein but has not confirmed the specific dates set forth in this paragraph. 7. Respondent admits the substance of the allegations contained in Paragraph 7 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. ANSWER - 2 8. Respondent admits the substance of the allegations contained in Paragraph 8 of Petitioner's Petition, on file herein but has not confirmed the specific date set forth in this paragraph. 9. Respondent admits the substance of the allegations contained in Paragraph 9 of Petitioner's Petition, on file herein but has not confirmed the specific dates set forth in this paragraph. 10. Respondent admits the substance of the allegations contained in Paragraph 10 of Petitioner's Petition, on file herein but has not confirmed the speck date set forth in this paragraph. 11. A,s to paragraph 11, Respondent admits the Council voted 3-0 to adopt and approve the Findings of Fact and Conclusions of Law regarding the denial of Petitioner's requested CUP-O1-026. 12. Respondent admits the allegations contained in Paragraph 12 of Petitioner's Petition, on file herein. 13. As to Paragraph 13, Respondent admits Meridian Petition for judicial review is the proper remedy for Petitioner's Request. 14. Respondent admits the allegations contained in Paragraph I4 of Petitioner's Petition, on file herein. 15. Respondent admits the allegations contained in Paragraph 15 of Petitioner's Petition, on file herein. ANSWER - 3 r 16. Respondent denies the allegations contained in Paragraph 16 of Petitioner's Petition, on file herein. 17. Respondent denies the allegations contained in Paragraph 17 of Petitioner's Petition, on file herein. WHEREFORE, Respondent prays for relief as follows: 1. That Plaintiff s petition be dismissed; and 2. For an order for attorneys' fees and costs pursuant to Idaho Code §12-120, 12-I21 and IRCP 56; and 3. For such other and further relief as to the court may seem just. DATED this ~ day of , 20~L WHITE, P RSON By Christopher S. Nye Attorneys for Respondent ANSWER - 4 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a tnie and correct copy of the above and foregoing Answer was served upon the following: David M. Penny Esq. Cosho, Humphrey, Greener & Welsh, P.A. 815 W. Washington, Boise ID 83702: LX__] United States mail, postage prepaid ~_] Facsimile transmission [__] Hand delivery },CG`z this ~~ day of ~ ~~ , 20 p'? ,~: Christopher S. Nye ey~Z~worlc~M~Meridi~-W~sc ~ i9~s~,~.~a ANSWER - 5