HomeMy WebLinkAboutSpink Butler Clapp ltr 5.15.03r1LC IVV ..~V1 VV/1J VJ 1J•4V 1L •Jr 11V1\ UV ILLI\ 41..1'11-r, LLI" II'1/\•LVV JUV 1VVi rlipL i~ V
Spink Butler Clapp,
451 E. front Street, Suite 400
P.O. Box 639
Boise, Idaho 84701
(108} 388.1000
(208} 388-1001 (facsimile)
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Fcix Cover sheet RECEIVED
Date:
May 15, 2003
TO: Mayor Robert Corrie &
City Council Members
887-4813
CC: BIII Nichols
City Attorney
466-4405
CC: David McKinnon
Meridian City Planning
888-6854
CC: Wendy Kirkpatrick
Meridian Clay Planning
888-6854
ToTal Pages Sent: 6
CC: Bruce FrecWeton
City of Meridian
Public Works
887-1247
CC: David Turnbull
377-8962
CC. Greg Johnson
888-9947
CC: Mike Wardle
344-3922
From: JoAnn C. Butler
DirecT a-mall: jbutlerQo sbc-attorneys.com
Direct Line: (208) 388-1093
File No.: 21592.7
Comments: Please see the attached letter.
CONFIDENTIALITY NOTICE;
MAY 1 6 2003
City Of Meridian
City Clerk Office
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MRY 15 '03 16~4~ 208 388 1001 PRGE.01
May 15, 2003
CIA FACSIMILE
Mayor Robert Come and
City Council Members
33 East Idaho
Meridian, Idaho 83642
RE: Paramount Subdivision
SBC File No. 21592,7
Dear Mayor Corrie and Council Members:
JOANN C. BUTLeR
SANDRA L. CLAPP
KfiLLY M. GAR RITY
M ICHAeL T. 9PINR
(209) 988-1093 (DIRECT LINE)
JDUTL6RQSBC•ATTORNEYS.COM
Prior to any annexation, the Council receives a recommendation finm 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 explain why the condition is neither
warranted nor appropriate. We will explain why this condition must be deleted if it is not to
tain[ the decision of the Council.
The Commission made a finding that Paramount Subdivision would be served adequately by
essential public facilities. The specific finding set out in Meridian City Code is:
Will the area 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;'
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In making this finding, the Commission stated: '7he applicant shall be required to extend water
and sanitary sewer mains to and through the proposed development, thereby making them
I Meridian Ciry Code Section 11-15-11.G.
251 E. FRONT STRCtT
SuiTE 200
P.0. Box 639
BOISE, IDAHO 83701
206.388-1000
20888-1001 (F)
1NWw.8BC-ATTORNEY9.COM
MAY 15 '03 16 48
208 388 1001 PRGE.02
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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 aze available for purchase by the public, sewer and
water services ate needed by Paramount residents and the Pazamount developer is obliged to
provide that water and sewer. This makes practical and legal sense: the need for the service
arises at the time the final plat is recorded and lots are available for sale. Eventually, the
privately-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 Paramount arises. Condition dumber 4 states that the applicant has to provide sewer
easements through the entire concept development before the need arises, appazently to serve
other property not related to Paramount 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 [sic) 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 not 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 Conunission has not
recommended that the applicant dedicate easements for pathways ahead of the Head for
pathways.
The Comnussioa did not, could trot, believe it would be on solid ground to demand these types
of easements throughout Paramount even before the final plat ofphase 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
MAY 15 '03 1648 208 388 1001 PAGE.03
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Mayor and City Council
May 15, 2003
Page 3
Staff time negotiating sewer easements. To avoid that time, Staff concluded in its
Memorandum that the Paramount developer should, as a condition of Paran~ount'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
provided by Staff'in its Memorandum is very appropriate, but not for the reasons suggested by
Staff. Staff appeazs 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 Paramount
Subdivision thus enabling the applicant to start the multi-phase Pazamount Subdivision. This is
incorrect. The location of the sewer on the west boundary of Paramount Subdivision was not
due to luck at all, but due to an extensively negotiated, expensive, private agreement between
the developer of Pazamount 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 comtection with sewer.
But why would a private property owner negotiate with Paramount for sewer? Especially if the
City will impose a development condition that is not reasonably related to the need created by
Pazamotmt, and clearly undercuts any need for private discussions. Again, the developer of
Paramount Subdivision, just as it did with Lochsa Falls, remains open to negotiaring 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 Paramount
Subdivision before the extension of sewer through Paramount Subdivision, the City can
certainly undertake a public sewer project in this azea, just as it undertook the White Drain
Trunk project. The City can either condemn or negotiate easements. The developer of
Pazamount Subdivision would support the Gity's public endeavors. But this developer cannot
agree to being compelled - in the guise of acondition ofdevelopment - to provide a public
easement for sewer (even before there is a need within Paramount Subdivision) to serve private
property to the eask.
We believe Staff also was confusing public apples with private oranges in its Memorandum
when Staff stated that, without condition number 4, this applioprrt 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 area. The City just does not have the power to insist,
MAY 15 '03 16 48 208 388 1001 PAGE.04
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Mayor and City Council
May 15, 2003
Page 4
in the guise 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?
If 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 consttutional "takings" law, there must be a substantial
"nexus" 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 land use
regulatory process to extract a public benefit from private owners when that benefit is not
substantially related to some Head generated by the particulaz development. The Commission's
attempt to condition Pazamount 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.
7'fhe Ciry must males a distinction between the public prof eats it authorizes, private agrcemen[s between
private parties, and the possible mis-use of the City's process to compel one private parry (in this case, the applicant)
ro undertake a project (that is the negotiation of public sewer easements) solely to benefit another private party.
There are three alternatives to providing sewer in this area: one, the Ciry can legally condition each final phase of
Paramount Subdivision to provide for sewer to serve each final phase and to stub sewer to the neat undeveloped
phase or adjoining property; two, the City can legally negotiate or condemn sewer easements and construct sewer to
undeveloped property; and three, private parties can negotiate to assis[ one another in the provision of sewer. This
applicant can fully support all ttuae alternatives but oot a condition that unfairly burdens [his applicant with a
requiremem not reasonably related to rho development's need, and not a condition that interferes with the ability of
priva[e parties to negotiate private oonaacts,
a Sae, t)olan v. Tigard, 512 US 374 (1994).
° Nollan v, California Coastal Cotmnission, 483 US 825 (1987).
' In this case, condition numbs 4 is not used to ensure that the needs created by rho development is met,
but is being used to accomplish general Ciry goals which, is all fairness, should be addressed or undertaken by the
public as a whole and not this particular applicant. See, generally, Ziegler, The Law of Planning and Zottittg, chapter
44, 89-91; See, generally, McQttillan, The Law of Municipal Corporations, chapters 24 and 25.
MAY 15 '03 1649 208 388 1001 PRGE.05
r 1LC IVV .JO1 VJ/1J VJ 1V •40 3U•JI'llVl~ OV ILGR VLYI~r~ LLf rl"I/~•GVO JOG 1VV1 rl-IUL Vi V
Mayor and City Council
May 15, 2003
Page 5
Again, d1e applicant has every intention to provide sewer throughout Paramount Subdivision as
each final plat for each phase is developed. Call i[ 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 forward to meeting with the Council next Tuesday evening and discussing
this further.
Sincerely,
~. ~~wc~~~.,
JOAtm C. Butler
JCBaaa
cc: Greg Johnson
David Tlarnbull
Mike Wardle
David McKinnon
Bruce Freckleton
Wendy Kirkpatrick
Bill Nichols
MRY 15 '03 16 49 208 388 1001 PRGE.06