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HomeMy WebLinkAboutSpink Butler Clapp ltr 5.15.03r1LC IVV .JV1 V:J~1J VJ 1J•YV 1U •Jf 11Vh Uv ILLn VLnrrp LLI" Inn •LVV JVV 1VV1 fnOL 1~ v S ink Butler Clapp, LLP ~~~~~~,~ 751 pFreat street, Saite zoo "" ~ ~ P.O. Bex 634 C~p~~RS ['~ ~~`73 Bois®, Idaho 89701 ~ ~"__ _ °"~pE (208) 388.1000 „aLl~ (208) 388-1001 (facsimile) Fax Cover sheet RECEIVED Date: May 15, 2003 Total Pages Sent: b MAY 1 6 2~3 C ty Olerk Office TO: Mayor Robert Carrie & City Council Members 887-4813 CC: BIII NICh015 City Attorney 466-4405 CC: David McKinnon Meridian City Planning 888-6854 CC: Wendy Kirkpatrick Meridian Clly Planning 868-15854 CC: Bruce Freckleton City of Meridian Public Works 887-1297 CC: David Turnbull 377-8962 CC: Greg Johnson 888-9947 CC: Mike Wardle 344-3922 From: JoAnn C. Buller Direct a-mall: jbutler@sbc-attorneys.com Direct Line: (208) 388-1093 File No.: 21592.7 Comments: Please see the attached letter. CONFIDENTWLITY NOTICE: This trdnsmisdon Is Intended only for the use of the Individual(s) Homed as recipients. Ii may contain Information that is privileged, confidential onWor protecietl from disclosure under applicable low Including, but not limited to, me attorney client privilege and/or work product tloohlne. If you are not the intended recipient of this transmission, please notify the sender Immediately by telephone. Do not delNer, distribute or copy this transmission, disclose lis contents, or take any action in reliance on the Information it contains. MRY 15 '03 16=47 208 388 1001 PRGE.01 DV ILCR I.LHrr. May 15, 2003 vrA FACSrMrz.~ Mayor Robert Corrie and City Council Members 33 Bast Idaho Meridian, Idaho 83642 121x: Paramount Sabdivision SBC File No. 21592,7 Dear Mayor Corrie and Council Members: r HUC JOANN C. BUTLER SANDRw L. CLAPP KELLY M. GAR RITY MlerlaeL T. swNrc (208) 98a-1093 (DIRECT LINE) JOUTLBR OQSBC•ATTORNEYS.COM Prior to any annexation, the Council receives a recommendation from the Planning & Zoning Commission, just as the Council has in connection with Paramount Subdivision. We appreciate all of the diligent work by the Staff and the Commission in placing that recommendation before the Council. However, we strongly take issue with just one of the many conditions recommended to the Council. We trust that we can exp]ain why the condition is neither warranted nor appropriate. We will explain why this condition must be deleted if it is not to taint the decision of the Council. The Commission made a finding that Paramount Subdivision would be served adequately by essential public facilities. The specific fording set out in Meridian City Code is: Will the azea be served adequately by essential public facilities and services such as highways, streets, police and fire protection, drainage structures, refuse disposal, water, sewer; or will the person responsible for the establishment of the proposed zoning amendment be able to provide adequately any of such services. ) In making this findit>,e„ the Commission stated: "The applicant shall be required to extend water and sanitary sewer mains to and through the proposed development, thereby making them I Meridian City Code Section 11-15-11.G. 2S7 E. FgONT URgCCT SUITE 2A0 P.q BOx 638 BOiEE.1DAH0 83701 208x988-1000 NANW.SBG-AT'ORNEYS.COM MRY 15 '03 16 48 208 388 1001 PRGE.02 C/ _^ rH~t si e Mayor and City Council May 15, 2003 Page 2 available to adjacent properties." This almost goes without saying. As each final plat in Pazamount Subdivision is recorded and lots are available for purchase by the public, sewer and water services aze needed by Paramount residents and the Paramount developer is obliged to provide that water and sewer. This retakes practical and legal sense: the need for the service arises at the time the final plat is recorded and lots aze available for sale. Eventually, the privaxely-installed but publically-dedicated water and sewer mains will reach adjacent properties. However, the Commission is recommending a condition that goes beyond providing services as the need in Pazamount arises. Condition number 4 states that the applicant has to provide sewer easements through the entire concept development before the need arises, apparently to serve other property not related to Pazamount Subdivision (and perhaps not even in the City). Specifically, condition number 4 states: 4. The applicant shall be required to dedicate a permanent easement, and a temporary construction easement, through the project to Meridian road [sicj for the North Slough Sewer Trunk after preliminary plat approval by the Meridian Ciry Council, and prior to submittal of the application for the final plat of Phase one. Please note: the Commission has no[ recommended that the applicant dedicate easements for water ahead of the need for water; the Commission has not recommended the[ the applicant dedicate easements for roads ahead of the need for roads; and the Commission has not recommended that the applicant dedicate easements for pathways ahead of the Head for pathways. The Commission did not, could not, believe it would be on solid ground to demand these types of easements throughout Paramount even before the final plat of phase one. Likewise, the applicant cannot be compelled to dedicate sewer easements ahead of the need for sewer created by Pazamount. 'When that need is created, when lots have been legally platted so that they can be sold, both the easements and the infrastructure will be put in place. It is not a question of whether the developer will make sewer available. That is an absolute. This is a question of when is it reasonable and fair to exact these easements from a developer? The answer is: when the need generated by that development arises. On the night of the Commission's April 17th hearing, Staff provided both the Commission and the applicant with a Memorandum that was meant to bolster the rationale for condition number 4. In its Memorandum, Staff reminded the Commission that the City's public sewer project (known as the White Drain Trunk project} took the City longer than desired, in part because of MRY 15 '03 1649 209 398 1001 PRGE.03 I'1LC IVV .JOL VV/LV VJ LV •W! 1L •Jr 31VI~ DVILCR VLHI"I', LLI" rHA •GVO JOO LVVl YHUC 4/~O Mayor and Ctity Council May 15, 2003 Page 3 Staff time negotiating sewer easements. To avoid that time, Staff concluded in its Memorandum that the Pazamount developer should, as a condition of Paraniount's approval, provide up-front public sewer easements all the way through the conceptual subdivision - so that the City could serve private property east of Paramount. In essence, Staff was attempting to justify compelling a private developer to carry out the City's function to acquire public sewer easements. This is mixing public apples with private oranges, and the example of the Lochsa Falls project piovided by Staff in its Memorandum is very appropriate, but not for the reasons suggested by Staff. Staff appears to believe that the applicant for Pazamount Subdivision is just plain lucky that the developer of lochsa Falls extended sewer to the western boundary of Pazamount Subdivision thus enabling the applicant to start the multi-phase Paramount Subdivision. This is incorrect. The location of the sewer on the west boundary of Paramount Subdivision was not due to luck at a11, but due to an extensively negotiated, expensive, private agreement between the developer of Paramount Subdivision and the developer of Lochsa Falls. Perhaps not coincidentally, the developer of Lochsa Falls also owns or has control over the property east of Pazamount Subdivision. As the Pazamount applicant told the Commission, the applicant would be happy to work with any adjacent property owner in connection with sewer, But why would a private property owner negotiate with Pazamount for sewer? Especially if the City will impose a development condition that is not reasonably related to the need created by Pazamount, and clearly undercuts any need for private discussions. Again, the developer of Paramount Subdivision, just as it did with Lochsa Falls, remains open to negotiating a private sewer agreement with adjacent property owners. Of course, if the City believes there is a need for sewer to be constructed east of Pazamount Subdivision before the extension of sewer through Paramount Subdivision, the City can certainly undertake a public sewer project in this area, just as it undertook the White Drain Trunk project. The City can either condemn or negotiate easerneats. The developer of Paramount Subdivision would support the City's public endeavors. But this developer cannot agree to being compelled - in the guise of a condition of development - to provide a public easement for sewer (even before there is a need within Paramount Subdivision) to serve private property t0 the east. We believe Staff also was confusing public apples with private oranges in its Memorandum when Staff stated that, without condition number 4, this applicant will have control over the City's sewer system, or that this applicant will have unfair market advantage over private property owners. This absolutely is not the case (and, since when does the City involve itself with private competition?). The City has the power to locate and build the sewer system if the City identifies a general public need in this azea. The City just does not have the power to insist, MRY 15 '03 1648 208 386 1001 PRGE.04 :J/ p Mayor and City Council May 15, 2003 Page 4 in the gtrise of a condition of development, that this developer must carry out a general public need not related to Paramount Subdivision itself. If the City attempts to do so, it is the City that would be unfairly burdening this applicant and involving the public City in the private market? Yf the Council adopts condition number 4, the Council will have, with no indication of authority to do so, unconstitutionally conditionally-zoned this property. The discretion of the Council to use its police power is broad, but not unlimited. Even assuming that the Council can condition this rezone request, in orfler to be valid, any condition must be reasonable, directly related and incidental to the proposed use of the property, and it must be proportionate to the impact of proposed development' As a matter of consritutional "takixlgs" law, there must be a substantial `Ytexus" or reasonable relationship between a development condition and the needs caused by the development" Where no such reasonable relationship exists, the requirement would be an unconstitutional deprivation of property. In other words, constitutional law prohibits local governments from utilizing their ]and use regulatory process to extract a public benefit from private owners when that benefit is not substantially related to some need generated by the particular development. The Commission's attempt to condition Paramount Subdivision on the dedication of sewer easements to serve a neighboring property is merely an attempt to disguise (under the police power) the City's actual power of eminent domains We trust the City Council will not fall into that quagmire. 2The Ciry must tnake a distinction between the public projeots it authorizes, private agreements between private parties, and the possible mis-use of the City's process to compel one priva[e parry (in this case, the applicant) to undertake a project (the[ is the negotiation of public sewer easements) solely to benefit another private party. Thee are three alternatives to providing sewer In this azea: one, dte Ciry can legally condition each final please of Paramount Subdivision [o provide for sewer to serve each final phase and to stub sewer to the neat undeveloped phase or adjoining property; two, the Ciry eea ]egally negotiate or condemn sewor easements and construct sewer to undeveloped property; and three, private parties can negotiato to assist one another in the provision of sewer. This applicant can fully suppor[ all three alternatives but not a condition [ha[ unfairly burdens [his applicant with a requiremem not reasonably related to the development's need, and not a condition that interferes with the ability of private parties to negotiate private oontraca. t See, Dolan v. Tigard, S 12 US 374 (1994). ° Nollan v, California Coastal Commission, 483 US 825 (1987). ' Tn this case, condition numbs 4 is not used to ensure that the needs created by the development is met, but is being used to accomplish general City goals which, in all fairness, should be addressed or under[aken by the public as a whole and not this particular applicant, See, generauy, Ziegler, The Law of Planning and Zoning, chapter 44, 89-91; See, generally, MctZ»illan, The Law of Municipal Corporadotts, chapters 24 and 25. MRY 15 '03 16 49 208 388 1001 PRGE.05 rnu~ w ~ Mayor and Gity Council May 15, 2003 Page 5 Again, the applicant has every intention to provide sewer throughout Paramount Subdivision as each final plat for each phase is developed. Call it an issue of timing if you will: the applicant cannot be coerced -legally - to accede to a development condition that addresses needs that aze not the developer's own. As always, we look forwazd to meeting with the Council next Tltesday evening and discussing this further. Sincerely, ~~~~~~~, JoAnn C. Sutler JCB:1aa cc: Greg Johnson David'Rtmbull Mike Wardle David Mcl{innon Bruce Freckleton Wendy Kirkpatrick Bill Nichols MRY 15 '03 1649 208 388 1001 PRGE.06