HomeMy WebLinkAboutBill Nichols Memo 5.29.03Interoffice
MEMORANDUM
To: Mayor Robert D. Corrie and Meridian City Council
Cc: William G. Berg, Jr., Gary Smith, Brad Watson, Bruce Freckleton, Anna Powell,
JoAnn Butler, Brain McColl, Becky McKay
From: Wm. F. Nichols
Subject: Paramount Sewer Easement Acquisition Issue
Date: January 20, 2022
Mayor Corrie and Council Members:
The Paramount Subdivision Annexation, Preliminary Plat, and Conditional
Use/Planned Development hearings were continued to June 3, 2003, to allow staff and the
applicant to obtain additional information. One of the items requested by the Council is a legal
opinion on whether the City can require the dedication of permanent and temporary construction
sewer easements through the development ahead of the final plat stages.
It is important in consideration of this issue to recognize the history of sewer
easement acquisition in the City of Meridian. Historically, sewer easements were generated, and
the sewers constructed, by the development community. These were projects typically smaller
than the one under consideration in the Paramount applications.
The exception to this is the construction of the White Drain Sewer Trunk and
South Slough Sewer Extension. The City Council decided to target a specific area for growth,
and allow properties within that sewer area to develop independent of each other, and therefore
authorized the construction of the White Drain Sewer Trunk. The alternative to a city driven
sewer trunk construction plan is to allow sewer trunks to be constructed from properties closest
to the Waste Water Treatment Plant, and then continuing upstream as each development is
completed. The designation of the White Drain Sewer Trunk, as a City project, did create the
focused growth in that sewer trunk area, which allowed for the construction of a variety of
housing types, commercial areas, schools, etc. The designation of the area for construction of
the White Drain Sewer Trunk also increased the price that the development community had to
pay for land.
Paramount, and Lochsa Falls and others to come, are development proposals on
what could be characterized as “grand scale”. The Paramount project consists of approximately
400 acres, or more than ½ of the entire square mile section. It contains two school sites,
commercial areas, and almost 1,000 housing units. Lochsa Falls also contains almost 1,000
housing units and a large public park.
The Public Works Department’s experience with regard to sewer easements, was
historically that sewer easements were granted at the final plat stage by the developer, and were
donated by the developer at no cost. The sewer was then constructed by the developer. The
White Drain Sewer Trunk and South Slough Extension represented a paradigm shift for the
Public Works Department. Construction of those trunks required the engagement of a sewer
easement acquisition person. The first problem encountered by the Public Works Department in
that process was that they had to pay for easements for sewer easement when previously sewer
easements were donated. With the White Drain Sewer Trunk and South Slough Extensions,
some landowners required payment. Other land owners requested, and received, special
considerations, such as timing of construction, fencing, compensation for stabling of horses, etc.
The negotiations with these landowners resulted in considerable delays in the project. The
Meridian Public Works Department has not exercised eminent domain to condemn sewer or
water easements. The desire to negotiate a result, rather than to force a result on a landowner,
delayed these projects.
This is the background in which Public Works approached the staff report and
recommendation on sewer easements for the Paramount Subdivision. The Public Works
Department measures its effectiveness by getting things built, built well, and minimizing
operating costs. Delays may be the province of lawyers; they are not well thought of by public
works officials. The Public Works Department is also contacted early, and often, by property
owners, engineers, and developers interested in purchasing and developing property. These
contacts are often well ahead of any public plans for construction of development, or even any
public knowledge of potential plans for development. With all of these things in mind, when the
Paramount applications were considered by staff, based on the desire of Public Works to
eliminate delays associated with sewer easement acquisition, and to further what the Department
believed to be in the best interests of the citizens of the City of Meridian, the recommendation
was made for the dedication of the permanent and temporary construction sewer easements
completely through the Paramount project, both as a condition of annexation and as a condition
of the preliminary plat.
After the last Council meeting, I contacted a Planning and Zoning attorney at
Boise City, and asked whether Boise City had required sewer easements ahead of the final plat
stage as referenced by Ms. McKay in her testimony. John Tensen, Boise City Engineer, and
Wayne Gibbs, Boise Planning Director, both report that sewer easements are not required before
the final plat stage unless the City negotiates to acquire the easements ahead of that stage. The
negotiation takes into account the City’s desire to sewer properties that lie upstream from the
development.
Paramount makes specific arguments against the dedication of the temporary
construction and permanent sewer easements. One of those arguments is that to require sewer
easements ahead of their development would benefit private parties lying upstream, and
therefore such dedication would not be appropriate. That argument should be rejected. The
easements would be for a public sewer, connecting property to the public Waste Water Treatment
Plant. The effective collection and treatment of effluent is clearly a health and safety issue, and
within the police power of a city. A similar issue was addressed in a case out of Valley County
involving the Payette Lakes Sewer District. I can provide a copy of the case or the citation to it,
if anyone prefers to review it. The case stands for the proposition that elimination of septic
tanks, and provision of public sewer service to properties within, and without, the city limits, is a
legitimate exercise of the police power. In addition, the Meridian School District has presented
plans to the City of Meridian showing school sites within the North Slough Sewer Trunk area.
Providing public sewer to these schools is another “public” use. It should be noted that many of
these schools are necessitated by development, such as Paramount, as those developers respond
to consumer demand for housing. The fact that other private developers may be served by the
North Slough Sewer Trunk does not mean the sewer easements are not a public project.
Additionally, elimination of the lift station at Vienna Woods, near the eastern end of the North
Slough Sewer Trunk area, would also be sufficient public purpose for the City to acquire
easements to build the North Slough Sewer Trunk.
The central question is whether the City can constitutionally require Paramount to
dedicate sewer easements ahead of the Paramount’s direct need for sewer on a specific portion of
the project? Can such a condition be required in the context of annexation?
Until the Idaho Supreme Court, or the Idaho Legislature, says otherwise,
annexation is a legislative decision, not a quasi judicial decision. The distinction is important. A
quasi judicial decision must be supported by substantial evidence in the record. A legislative
decision can be made on the basis of whether the legislative body believes the decision is in the
best interests of its citizens. A decision to annex is a legislative decision as evidenced by the fact
that to be effective, an annexation has to be completed by ordinance. A legislative body can
make a decision that is not based on facts. For example, the 2003 Idaho legislature passed “tort
reform” legislation, in spite of the fact that there was no evidence presented that there had been
any runaway juries in Idaho, and even though the insurance industry stated that there would be
no guarantee that the legislation would result in lower insurance premiums. The legislature
decided that such action was necessary to preempt future problems, even though no past
problems in Idaho could be shown. With annexation, the Council must decide if the annexation
of the property is in the best interests of the City of Meridian and its citizens. If the development
does not provide what the City wants to see, or if the development is ahead of when the City
wishes to see an area develop, the Council can reject annexation. Often annexation is
conditioned upon execution of a development agreement which binds the developer to include
the items deemed by the City Council to be necessary. Until the development agreement is
signed, the annexation ordinance is not presented or adopted.
It is possible for the City to require the dedication of permanent and temporary
construction sewer easements as a condition of annexation. The question is whether this
particular development is the one which Council should test the issue of whether a court would
decide that such a requirement was a legislative decision and whether it constitutes an
uncompensated taking. I do not think this is the case to test that issue. Requiring dedication of
easements ahead of the actual need for sewer within the development may constitute a taking.
Requiring easements in other situations with other developments may not constitute a taking.
The choices presented to the Council are: 1) whether to annex this property and
forego dedication of permanent and temporary construction easements for sewer (recognizing
that negotiation or eminent domain could be required to build the sewer); or 2) decline to grant
annexation because the City does not have current plans to acquire sewer easements and
construct the North Slough Sewer Trunk. If the Council chooses the first option, the street
configurations in the preliminary plat, where those easements would be placed, should be fixed
with reasonable certainty to facilitate negotiation and/or eminent domain.
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