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Spink Butler Clapp, LLP ~~~~~~~~
251 E. Frenf Street, Suite 200 `' ~ ~'
P.O. Bax 639 ~i~~QRsa„ ~~`~,~
Boise, Idaho 83701 sr<,-. ,~~
(208) 388.1000 v'~i~~`~V
(208) 388-1001 (iocsimile)
Fax Cover sheet RECEIVED
Date: May 15, 2003 Total Pages Sent: 6 MAY 16 2003
TO: Mayor Robert Cowie &
City Council Members
887-4813
CC: BIII Nichols
City Attorney
466-4405
CC: David McKinnon
Meridian Ciiy Planning
888-6854
CC: Wendy Kirkpatrick
Meridian City Planning
888-6854
CC: Bruce Freckleton
City of Meridian
Public Works
887-1297
CC: David Turnbull
377-8962
CC: Greg Johnson
888-9947
CC: Mike Wordle
344-3922
City Of Meridian.
City Clerk Office
From: JoAnn C. Butler
Direct a-mall: jbutler@sbc-attorneys.com
Direct Line: X208) 388-1093
File No.: 21592.7
Comments: Please see the ottoched letter.
CONFIDENTUU.ITY NOTICE:
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MRY 15 '03 16 47 208 388 1001 PAGE.01
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JOANN G. BUTLER
ShNDRA L. CLAPP
N84LY M. GAR RITY
MICHAEL T. SPINIt
May 15, 2003
VIA FACSIMILE
Mayor Robert Corrie and
City Council Members
33 East Idaho
Meridian, Idaho 83642
RE: Paramonnt Subdivision
SBC File No. 21592,7
Deaz Mayor Come and Council Members:
(208)988-1093 (DIRECT LIME)
JOUYLERQCBC-ATTORNEYS.COM
Prior to any annexation, the Council receives a recommendation from the Planning & Zoning
Commission, just as the Council has in connection with Pazamount 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
taint the decision of the Council.
The Commission made a finding that Paramount Subdivision would be served adequately by
essential public facilities. The speciftc 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.'
In making this finding, the Commission stated: "f}te 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-IS-1l.G.
257 E. FliONT STRCCT
sulTe 200
P.0. Box 639
BOIEE. IDAHO 83701
208rJ' 88-7000
20H.38B-1001 {~
W W W.9BC-ATTORNEY9.COM
MRY 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
Paramount Subdivision is recorded and lots are available for purchase by the public, sewer and
water services are 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 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 [sic] for the North Slough
Sewer Trunk after preliminary plat approval by the Meridian City Council, and prior to
submittal of the application for the fmal plat of Phase one.
Please note: the Comnssion 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 Commission has not
recommended that the applicant dedicate easements for pathways ahead of the Head for
pathways.
The Commission did not, could trot, 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 Paramount. '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 rho 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'UVhite Drain Trunk project) took the City longer than desired, in part because of
MRY 15 '03 1648 209 398 1001 PRGE.03
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 Paramount'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 Pazamount. In essence, Staff was attempting to
justify compelling a private developer to cant' out the Ciry'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
Suff. 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 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 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 Paramount 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 azea, just as it undertook the White Drain
Trunk project. The City can either condemn or negotiate easements. The deve]oper 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 to 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 applio~artt will have control over the
Ciry's sewer system, or that this applicant will have unfair mazket 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 1648 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 Pat'arttount 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 mazket?
If the Council adopts cotdition ntunber 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.3 As a matter of constitutional "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 need generated by the particulaz 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.
tTlte Clry must make a distinction between the public projects it authorizes, private agreements between
private parties, and dte possible mis-use of the City's process to compel one private parry (in this case, the applicant)
to 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 azea: 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 next undeveloped
phase or adjoining property; two, the City can legally negotiate or condemn sewer easements and coruhvct sewer to
undeveloped properly; and three, private parties can negotiate to assist one another in the provision of sewer. This
applicant can fully support all three alternatives bm not a condition that unfairly burdens tlils applicant with a
requirement not reasonably related to the development's need, and not a condition that interferes with the ability of
private parties to negotiate private contracts,
a See, Dolan v. Tigard, 512 US 374 (1994).
° Nollan v. California Coastal Commission, 483 US 825 (1987).
s In this case, condition number 4 is not used to ensure that the needs treated by the development is met,
but is being used to accomplish general City goals which, in all fairness, should be addressed or undertaken by the
public as a whole and not this particular applicant, See, genually, Ziegler, The Law of Planning and Zoning, chapter
44, 89-91; See, generally, McQuillan, The Law of Municipal Corporations, chapters 24 and 25,
MRY 15 '03 16 49 208 388 1001 PRGE.05
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Mayor and City Cottncil
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 fotwazd to meeting with the Council next'111esday evening and discussing
this further.
Sincerely,
JoAnn C. Butler
JCBaaa
cc: Greg Johnson
David'Iltrtsbull
Mike Wazdle
David Mckinnon
Bruce Freckleton
Wendy Kirkpatrick
Bill Nichols
MAY 15 '03 1649 208.388 1001 PRGE.06