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HomeMy WebLinkAbout1998 10-22MERIDIAN CITY COUNCIL SPECIAL MEETING OCTOBER 22. 1998 The special meeting of the Meridian City Council was called to order by Mayor Robert D. Corrie at 6:30 p.m. MEMBERS PRESENT: Keith Bird, Charlie Rountree, Glenn Bentley, Ron Anderson. OTHERS PRESENT: Robert Corrie, Will Berg, Bill Gigray. Corrie: This is the time and place set for the hearing on the motion of Bill and Lucy Leavell, owners of the Hunter Glenn filed by their attorney of record, Frederick V. Shoemaker. The motion is that the City Council not approve the development agreement and return the developer's request for rezone and annexation and any other administrative proceedings is seeking which would require hearing to the Planning and Zoning Commission for further review in the consideration of the City's action concerning Hunter's Glenn in 1992 and the rights of Leavells and the residents of Hunter's Glenn. The motion is based upon the grounds that the Leavells did not receive notice of the public hearing held on applications. The Leavells also seek to have notices to them sent to 2720 South Ariel Lane, Meridian, Idaho 83642. Notice of this hearing has been provided to the applicant, to Ronald L. Crow, Moore and Less, Inc., and by stipulation of the parties this hearing was moved to today's date and time. The procedure for tonight's hearing is on advice of the city attorney as it will not be a hearing on the merits of the development or its affects upon affected property owners, but will be limited to the arguments and facts relative to the basis of the motion. I will first call upon the City Clerk to inform Council their records of service and notice of this matter. The Council will then hear arguments from Leavell's counsel which will be followed by argument from the applicant's counsel followed by a brief reply by Leavell's counsel if anything new is brought up by the applicant's counsel. This will be followed by advice from staff as requested by the Mayor and Council and then the Council will deliberate on the matter to decide whether to take the matter under advisement for decision at the next regular Council meeting and/or for decision on the motion this evening. Is this agreed to by the City Council? Bird, yea. Bentley, yea. Anderson, yea. Rountree — Rountree: I have a procedural question. The options are to deliberate, decide on the merits presented tonight. If we choose to deliberate, then we consider it at our next regularly scheduled meeting. At that point, do we make a decision or do we go forth with the Findings of Fact and Conclusions of Law and a decision order? Gigray: Mr. Mayor, members of the Council, Councilman Rountree, in answer to your question the proposed procedure for this evening's motion would just give you the option of whether or not you may not be prepared to make a decision on the motion tonight. You may want to take it under deliberation and advice. And then render opinion. I think you have to say you're going to do that at some point in time, and I would just recommend the next regularly scheduled Council meeting so you don't have Meridian City Council Special Meeting October 22, 1998 Page 2 to have to have another special meeting to be considered. And this isn't a situation where I think you have to issue Findings of Fact and Conclusions of Law and Order because this is a motion regarding the procedure and I think in this particular circumstance I mean we will prepare the appropriate order given the findings that you make, but it's going to be limited to whether or not notice was given, whether or not the state law or any law that they are relying upon would require you to do what they're asking you to do or not, and we can prepare the appropriate decision which you could have before you at the next regular Council meeting, but you could announce if you're ready or you may not announce that you're even ready to make that decision tonight. Rountree: Thank you. Mr. Mayor I would vote affirmative on your action. Corrie: Let the record note that ayes from all council members present. ROLL CALL VOTE: Bird, yea. Bentley, yea. Anderson, yea. Rountree, yea. Corrie: Will the representatives of the parties identify themselves for the record? Shoemaker: Fred Shoemaker, 850 W. Washington, and I represent the Leavells, and Lucy and Bill are both here and I believe if it's acceptable to the Council Mrs. Leavell would also like to make some remarks and submit some testimony. Stoppello: Mayor, my name is Frank Stoppello, 620 W. Hays Street, Boise, Idaho. I represent Mr. Ron Crow. Mr. Ron Leslie from Moore or Less, Inc. is also present. I spoke with his attorney, Mr. Mollerup. Mr. Mollerup stated that our interests are the same. I can't say I'm representing Mr. Leslie. But he is present to hear the matter. Corrie: Thank you. At this time I'll call on the City Clerk for the report please. Berg: Mr. Mayor, members of the Council, in your packet that I prepared has some information that I'll briefly go through. If you want more detail, I can present that to you. Make note of the first item is a mailing list that has JUB at the top of the page. This is the list that was supplied to us by the applicant. Down at the bottom of that page, you notice the Leavell name and address, William D. and Lucy M. Further in the packet is a certified form from the postal service of the certified mailings on the asterisk is the same noted resident or property owner number four. Then also in your packets is the returned envelopes. One posted marked September 25. The other one postmarked November 25th of 1997. And all four of those documents if you will note that the addresses, especially the city. To just go further these were mailed out according to our ordinance and land use planning act for the hearings noticed for annexation and zoning, preliminary plat and conditional use. Also in your packet to go further through your packet is an updated list of property owners with an area map of that vicinity of the subject property, Sterling Creek. As far as looking through the documents that we have Meridian City Council Special Meeting October 22, 1998 Page 3 in our project files, we followed all the proper procedures as far as getting the notices out for the hearings. The conflict of the address situation as you can see is different from the list plus as to the mailing. I don't know if I have anything else to add or any other questions that you might have of me. Bentley: I have none. Rountree: Mr. Mayor, Will the first list you show here, that represents a list of the original mailing. Berg: Yes, that's correct. That's the original mailing that JUB supplied to us. Rountree: And the date is August 18, 1997. Berg: I presume that's the date the list was created which corresponds with the application date or close to the application date. Rountree: I wanted to make sure that represents. That's all I have. Corrie: Okay no further questions from Council. Mr. Shoemaker. Shoemaker: Thank you Mr. Mayor and members of the Council. Again for the record my name is Fred Shoemaker. My business address is 815 W. Washington and represent Bill and Lucy Leavell. I agree with your City Attorney, the City Attorney's determination that the decision for you tonight is a procedural one. One to determine whether the city followed the proper procedure or did not and if not, what consequence should flow from those findings. And I'm going to talk therefore primarily and Mrs. Leavell is also going to submit some remarks that speak to this limited issue of procedure but I think it's helpful if not necessary to give you a little background as to one history and two geography to understand why we've asked you to be here on this special night. Not incidentally appreciate the city's courtesy, your courtesies in allowing us this special hearing on a Thursday evening. Again as to history if I may, back in 1992 you all the City of Meridian approved for Bill and Lucy Leavell a project that was then known as Hunter's Glenn. It's known today as Creekside Arbour. But it's the same project. It is today a 44 unit multi -family housing project. A real nice upscale apartment complex and not incidentally one that was really kind of a — Pioneer was the first upscale apartment complex in Meridian back in '92. The Leavells, this is their family operation, their only business, the primary business. They've sunk their life savings into the operation of this apartment complex. They work there with their children. It's about a 10'/2 acres and if I could just move (inaudible). Mr. Mayor and members of the Council north is up here. This is Fairview Avenue. This shows the project on the long range basis, both phase one and phase two. The existing 40 units located here proposed approximately 60 units located here. The applicants or the Meridian City Council Special Meeting October 22, 1998 Page 4 developer's property is located at the top of this map. It's to the east of Creekside Arbour apartments. This is the second phase. This is the existing first phase. Since I'm here let me talk a little bit about Badley Avenue. I've highlighted it in yellow because it plays an important part here. We're try not to get into the (inaudible) issue, but I think to understand why the Leavells are here. This is truly a crucial if not life or death issue for their project. Badley Avenue terminates right here in terms of a public right-of-way and the Leavells were required to extend it actually pay for the paving for ACHD and this street which appears if you were to drive down there, it looks like a public street, but actually it's a private street. And the plan is approved by the city seven years ago was to have in keeping with the Leavell's request internal private streets. Even so all these streets actually Badley Avenue today as a private street extends and curves a little bit to the right and the existing asphalt begins just down here in this area. The proposal is to run Badley (inaudible) fork to the north and have the second phase of 67 units on this property. Badley Avenue if extended as the crow flies if you will of course will go due east right through the middle of 1, 2 3, 4, 5, 6, 7, 8 units of the proposed second phase multi family housing project. This the developer has Badley Avenue stopped here on his proposal — proposed application as if it's going to be extended. Needless to say that the Leavells do not want the nor can we I think accurately assume the tenants of the project don't want this serenity of their housing project ruined nor does he want to lose the location for eight housing projects, eight units in his multi family housing project if Badley Avenue were extended. Now just a little bit on what I believe at least to be the determination that the standard for your determination — don't want to get too legalistic. I know you have a fine Council here that can talk you about that, but in a word if the substantial rights of in this case the Leavells have been prejudiced by an improper procedure I think it's incumbent upon you to set the matter straight and to remand the matter back to the Planning and Zoning Commission. In saying that I'm not unmindful being a developer and representing dozens of developers myself, how difficult that's going to be for Mr. Crow and his partners, but I think the facts warrant it, weighing the advantages, weighing the rights and responsibilities of each party. Now, I think you maybe asking well how is that the Leavells didn't even if the City made an honest mistake and put Meridian when they should have said Boise on the envelope. And no one is suggesting that this is an intentional act on the part of the city. It was an unfortunate omission. How was it then that the Leavells didn't know about this development that's going on right next to their property and Mrs. Leavell will add a little bit more information to this, but in fact Mr. Leavell had a meeting, met with Mr. Crow on his property over two years ago. And the discussed concerned the extension of Badley Avenue to the east up and Mr. Leavell told Mr. Crow in no uncertain terms that a Badley Avenue was for the 400 feet closest to Sterling Cove a private road and would cross private land and he had no intentions and he was absolutely unwilling to turn a private internal street system or any part of it into a public right-of-way. So the Leavells knew that Mr. Crow was going to do something with this property. They watched it develop and occur around their property over the last several years. But from that conversation and from the fact that there was — they actually received no notice, they didn't know Meridian City Council Special Meeting October 22, 1998 Page 5 about the hearings and they weren't concerned about what was going on until earlier this year earlier this summer when finally they saw the development and some encroachment on their property line. They ran down to the City Hall got copies of the records from the City Clerk's Office. Talked to Mrs. Stiles and were frankly dumbfounded by learning that access to Sterling Creek Subdivision was proposed to the second access the first access and this is a — got two photographs. One dated 10/26/96 which is about two years ago, and the second photograph dated earlier this year 6/29/98. And I know they are kind of hard to see so I'm going to pass them around but let me just make some remarks to both of them and at least one of them in front of you for the time being. Outlined in red is the applicant's subdivision. Outlined is the Hunter's Glenn, now Creekside Arbour, multi family housing project. You will see the existing 40 units there and then undeveloped land with a property or a sliver I'm going to call it running all the way up to Fairview. The Leavells as part of the development agreement that you all approved back in 1992 were required also to provide two public accesses. One of which is to Fairview Avenue upon completion of the second phase of their project. So if I may Mr. Mayor and — (inaudible) to comment. So the long and the short of it is that the Leavells did not know about Mr. Crow's plan to punch if you will Badley Avenue through the second phase and two buildings, two four plexes of his multi family housing project. I think it's fair to say that the City staff, of course there's been a change in staff from '92 to today did not know about the development agreement, did not know about the fact that the private street system was an integral part of the approval of Creekside Arbour back in '92. 1 guess as I look at the minutes and speak with the people at the ACHD not incidentally the highway apparently didn't know about this signed and quoted development agreement either because no where is there mentioned that this private street system was to be kept in tact. And in fact the second access that Mr. Crow needed for his subdivision still needs for a subdivision in addition to Washington Street which provides access to the south, is the access on the public right-of-way extending Badley Avenue through this 100 unit apartment complex. Now I think that sometimes matters are appealed to the City Council and Council members maybe rightly asked well so what? No harm no foul. Even if we remanded it back, wouldn't they come up with the same decision and what can we do now? So in that light I think I need to talk to you a little bit about. This isn't just a technicality that we're hanging on and had the City followed the correct procedure and again not suggesting any foul play or had Mr. Crow frankly been a little bit more candid and forthcoming about his plans, a different result I submit would have obtained and still should obtained if you do as I urge you to do and remand the matter back to the Planning and Zoning Commission and when I say matter, maybe it's important to talk about the three things, the three actions that the City has taken to date regarding Mr. Crow's Subdivision, Sterling Creek and they are one an annexation, two a conditional use permit or a PUD and three a rezone. Now the latter two are important because both require again to get a little lawyeristic here both of those procedures under your ordinance and under the land use planning act do require that notice be sent to everyone within three hundred feet. And sadly even though JUB provided this laundry list of people that should have Meridian City Council Special Meeting October 22, 1998 Page 6 been provided notice, the people whose rights by light years the most impacted they share (inaudible — off the microphone). In the 700 feet of common boundary between Sterling Cove and Creekside Arbour to the east of the multi family housing project. That is a common boundary with Mr. Crow's subdivision so they without a doubt especially with bisecting or proposed bisecting of their property with a 40 50 foot right-of-way without a doubt they are the most impacted and are at a minimum certainly satisfy the statutory requirements of aggrieved persons or affected persons. Now back to what happened in '97. Had the notice been provided? Had the Leavells learned, had Crow been more forthcoming, I don't think your city attorney would have prepared or the Planing and Zoning Commission would have made the Findings in both the rezone, the annexation and the conditional use permit which included the following statement and they quote Mr. Lee, an employee of JUB Engineers who was then representing Mr. Crow. And I'm just going to paraphrase it. But I'm not taking it I submit to you out of context and this is the findings and conclusions dated 10/24/97 just about a year ago tonight. Mr. Lee says or is quoted as saying that he had on behalf of Mr. Crow quote made provision for extension of Badley Avenue, end quote. That is if not patently false a slight of hand, a half truth. No provision had been made with Mr. and Mrs. Leavell. In fact Mr. Leavell told Mr. Crow flatly and absolutely two years ago no my plan my long term plan and as approved by the City of Meridian two years ago called for the maintenance of this project. All be it the fact that Leavell didn't have the money to build 40 units any more than 40 units on day one. The plan always was and always has been and in deed the city's approval back in '92 part of the development agreement you'll see if you read it you all require three amenities. You wanted a pool, a clubhouse and a laundry and Mr. and Mrs. Leavell required to build the laundry which is in place out there. It's the square building on the northwest corner of phase one and they proposed as you see here the construction of a clubhouse and a pool. I think under the development agreement has to be completed within 9 nines of months of the final approval the phase two. So again not wanting to talk about the merits of the case, but to submit to you that there are alternatives practical alternatives today other than cutting through the middle of Leavell's apartment complex and I need to at least ask you all to make reference to you may want to look again at the (Inaudible — off the microphone) Fairview Avenue on the north, the subject applicant's subdivision and you'll see about three hundred feet is a — 40 feet width the white ribbon down the center is concrete. The darker piece is asphalt. It's a paved public right-of-way bisecting the Roundtree west property owned by Shorty Johnson to the east and Mr. and Mrs. Cova's (sic) property which is a Texaco station. You may think of it or know it as a Texaco station to the west. Now Mr. Cova approved that right-of-way at his expense. It's primarily as understand and on Shorty Johnson's property the Roundtree west property but it comes within 30 feet of the north border of Sterling Cove Subdivision so I submit to you that there are other and in fact better ways to design a second access a second means of ingress and egress as ACHD requires other than blasting through the middle of the Leavell's apartment complex. Now curiously Mr. Cova is here tonight and he can speak for himself. But curiously as of 15 minutes ago, Mr. Crow hasn't contact Mr. Cova about Meridian City Council Special Meeting October 22, 1998 Page 7 this other alternative access. There are not incidentally other accesses that could have been provided. There's a subdivision as you may recall having approved it some of you may recall having approved it years back called Danbury Fair. It's the subdivision just to the east of Sterling Cove. Now if you look in your city records as I did, you'll find that the building permits for the tier of lots facing the Sterling Cove Subdivision to its east through which access could have been obtained, that second alternative access, you'll see that the building permits weren't actually issued for those lots the most the last was issued on December 12, 1996. The first was issued in April of '95, so there was a fairly lengthy period of time I think we'll find that Mr. Crow or his family has owned this property for a long time and certainly had in his plans development of the application at least in 1995 if not 1996 and could have sought when he learned of Mr. and Mrs. Leavell's position that a it was a private road and as far as they were concerned it was going to stay a private road could have found access and means of access to the east or again I think most logically today that's their opportunity to figure out I think they need to get to work on finding that alternative access through Mr. Cova's property. He is prepared, again Mr. Cova can speak for himself. He's prepared to at least discuss, sit down and discuss the issue of providing alternative access. Mr. and Mrs. Leavell are not. Their plans as blessed by this city don't call for any portion of their project to be bisected by a public street. If I may Mr. Mayor, I'd be glad to stand for any questions at this time, but I would like Mrs. Leavell, she had a few remarks on the details of the notice to her and her husband. Corrie: Okay. Gigray: Mr. Mayor do you wish me to — I mean if we're taking testimony in support of a motion in our customs to swear, do you want me to swear the witness? Corrie: I think so. LUCILLE LEAVELL 2720 S. ARIEL LANE MERIDIAN WAS SWORN THE CITY ATTORNEY. Leavell: We have lived there since March or April of '97. The address that Mr. Lee of JUB had submitted was a house that we had vacated in March of '96. And so I'm not sure why he submitted that particular address. The County Assessor did not use that address in '96 or '97 to send us our tax bills. Mr. Crow was given when he had his discussion with my husband, my husband gave him a copy of his business card with our office address at Creekside Arbour. He had our office address. The County Assessor used our office address per our request for business pertaining to Creekside Arbour and part of the reason for that was that we knew we were in a state of transition. We were in Boise. We wanted to be in Meridian. It takes time to build a house. We lived in two other places and two other personal addresses. There is absolutely no way that that would have reached us had it been sent out the way or at least I don't suppose that it Meridian City Council Special Meeting October 22, 1998 Page 8 would have. Beside getting the address wrong from what they gave you, even, I'd like it noted that when the little strip mall on Fairview Avenue directly north of us was built, they could find us. They could notify us. The City of Meridian has notified us for other things too. So other developers could find us. Another thing that could have prevented this that just astounded me when I saw those returned envelopes. Both of them were clearly marked no such address. But the postal service provides a service free of charge, but you have to request it. The Meridian post office knew where we lived. That was sent to Meridian and returned because no one asked for address service. You can get a little stamp for about $5.00 or $6.00 that says address service requested. Stamp it on the envelope. If you have something misaddressed, the post office will notify you and I really encourage you to do that in the future. If it seems reasonable to you. I really would like to suggest that you require engineering firms or whoever is submitting lists to you if they're going to use the County Assessor's address list, that they be required to use the address that the County Assessor uses. We have never missed getting a tax notice. The County Assessor has our address. Both of them the office and home both. So that doesn't help us where we are now. We had no knowledge of Mr. Crow's plans other than what he had discussed with my husband approximately two and a half years ago. Until August 5t", we returned from being out of town and saw the earth moving machines next door. At that point, my husband did go to city hall and request some information. A few hours later I talked with Ms. Stiles on the telephone. She did not know that our — she didn't even know off hand and she said she had the files out since my husband had been there. She didn't know that we owned both pieces. She didn't know that we had a plan in place. A concept plan that had been approved. And I would like to see if it's possible some safeguards in that respect. I just found it rather alarming that neither the city person in charge of it nor the ACHD review panel knew about that. When I talked with the tech review panel on Friday of last week, they asked me to clarify whether I owned Creekside Arbour or the vacant lot behind it. So I kind of wish we could have color in map or something and mark it all as Creekside Arbour even though it isn't there yet. We are in the planning stages for phase two. We're also in the money collection stage. And hope to break ground at the latest by the spring of 2000. Hopefully we'll be coming to you within six months to a year and begin some planning work on that. Thank you for your time. Bentley: Mr. Mayor I have a couple of questions. Lucille, the address shown on the certified letters was 2484 Sushine Drive? Leavell: Yes. Bentley: And that was a correct address except for the city was wrong? It says Meridian on there? Leavell: It would have been in '96 up until March of '96. Meridian City Council Special Meeting October 22, 1998 Page 9 Bentley: But the City of Meridian is where that address is? Leavell: No. Bentley: It's in Boise. Leavell: And the zip code is 83712. Bentley: Okay. The question I had you stated that the postal service knew where you lived? Leavell: They said gives our mail every day. We started getting mail on Ariel Lane in February before the house was finished to prevent another postal change. We had our mailbox up and they allowed us to get our mail there. Bentley: Right, but how did you get the mail from Boise is what I'm getting at from your address on Sushine Drive? Leavell: I had put in the cards that you give the post office and various people, the change of address. Bentley: When did you move out of that Sushine address? When did you have the forward put in? Leavell: March of '96, March 15th as a matter of fact. Bentley: Okay because their forwards are only good for a year and these certified were sent out in September of '97. Leavell: We had another address between those. We had taken a house a smaller house in trade. We moved into it when we transferred our address to that. That was on Mortimer Street in Boise with the same zip. Bentley: Right, but the point I'm getting at is that you said the postal service knew where you were and then if we would have put an address correction requested there, that they would have gotten it, but this was marked up by the carrier service in Meridian stating that it's no such street. Leavell: That's correct. Bentley: So the carrier service — Leavell: They're not obliged to send it to another address. Meridian City Council Special Meeting October 22, 1998 Page 10 Bentley: Yes, they are obliged. Yes they are. If they know that the city is wrong, they are obligated to correct the city and send it on. I'm not trying to argue with you on the point. The point you were making was they could have taken care of it had we requested that. That isn't true. Because when you get into the amount of carriers there are, there are just too many to recognize the address. The error was made with putting the wrong city on it, but to put address correction on every envelope is pretty expensive. What I'm getting at they can — if they know where you live, they're suppose to get the mail to you. It's not just well I know where she is, but it's the wrong address on it, so I'm going to send it back because that's not the policy. Leavell: No, but I have no idea what carrier in Meridian had an address correction, it would have gone through the post master's office as I understand it. Bentley: No, that's not correct because the forwarding for Meridian's mail goes to Boise because they have a central forwarding service for virtually the whole valley and it's all in Boise. It's not Meridian's mail is handled here. Meridian's mail isn't. And that's all that I was trying so that you understand that. It's just not the way it works. Leavell: So maybe it would not have prevented this one. Bentley: Right. Leavell: But it might another one. Bentley: But you did have the changes in so they could have backed it up from there. Leavell: Yes, I did. Bentley: Okay. Thank you. Anderson: I had one question. Is this — we have a 1312 E. 5t" Meridian, is that your office address? Leavell: Yes, it is. Anderson: So that is a current address. Leavell: Yes, that's our current office address. Anderson: Okay. Leavell: And that is the one the tax assessor uses for taxes on those properties. Meridian City Council Special Meeting October 22, 1998 Page 11 Anderson: And they've been using that ever since you built it? Leavell: No, I think the correction — they were actually addressing it to 1304 4t" Street for a while and we asked them to correct it and I don't recall the date of that correction. But I know it was at least six months before this was sent out. Corrie: Thank you. Mr. Shoemaker is that the end of your — Shoemaker: (Inaudible — off the microphone) Corrie: Mr. Stoppello. Stoppello: Mayor Corrie and members of the Council, Mr. Gigray, my name is Frank W. Stoppello and I represent Ron Crow whose family has owned this approximately ten acre parcel since the early 70's. In October of '96 Mr. Crow began development of the present project. After the preliminary plat was approved in February of 1998, he sold 33 residential lots of the subdivision to Mr. Ron Leslie which his corporation is Moore or Less, Inc. He retained 8 townhouse lots in the same subdivision. My client received notice of this grievance or this motion October 3rd, 98. 1 only represent Mr. Crow but I believe both Mr. Crow and Mr. Leslie have the same interest. I spoke with Mr. Dick Mollerup before this hearing last week, who is Mr. Leslie's attorney and he agreed we have the same interest. Mr. Mollerup wanted me to tell you that he was out of town for the week and could not attend. The current status of the construction of this subdivision is that the water, sewer and irrigation has been completed. The bridge in the subdivision has been constructed and completed. All utilities are in. All roads have been cut in. Today they were laying the base and rolling the base for the pavement, curb and gutter sidewalks. Within a week the curb and gutters and sidewalks will be in or least started. Final paving will be immediately thereafter. If this objection is upheld or it's put back as wanted by the grievant, it will be financial disaster for both parties. It is critical the project be continued in the final plat filed. The final plat is now being held by the Meridian City Engineer I guess subject to this motion. That's our understanding. Presently both parties have invested approximately the following approximate amounts. My client for his 8 townhouse lots has approximately $62,000 invested at the present time. The value when completed this project is $147,000 for his 8 townhouse lots. Mr. Leslie informed me before the hearing he has invested $500,000 to date. I believe I can say it will be a financial disaster for him if this is sent back. Am I right, sir? There are some things here that I think must be addressed. When you say someone is less than forthcoming, it implies some dishonesty. Mr. Crow was somewhat set back by this notice. He did not somehow confuse the address or provide a wrong address, whatever. I don't know what happened there. Mr. Shoemaker made another statement that is not quite true in my opinion. He said to the effect that Mr. Crow needs this Badley Street extension to get his subdivision approved. That is what I heard. This Meridian City Council Special Meeting October 22, 1998 Page 12 subdivision is already approved by all entities. Ada County Highway District required as part of their approval that Mr. Crow put in a stub. Now that isn't something that Mr. Crow wanted to do. It was part of the ACHD requirement. There is not going to have to be an extension before he builds on his townhouses or the final plat is approved. That is not a correct statement. The subdivision is not subject to a Badley Street extension in no way, shape or form. Mr. Leavell objects because this could mean an extension of Badley to the stub in the future by ACHD, not be Mr. Crow or Mr. Leslie or the City of Meridian. He's objecting to a process that ACHD might require or if ACHD wants to extend that stub and make that a public street, under eminent domain procedures, they have a perfect right to do that. If you have a ten story building, if they wanted to pay for the building, they can take that land by eminent domain. This objection to any future extension is quite properly with ACHD, not my client or Mr. Leslie or the City Council. There's nothing we can do about what ACHD wants to do in the future if they in fact want to do that in the future. Obviously if my client had any idea there was a mistake in notice, I don't think we would have invested this kind of money nor I would believe Mr. Leslie would have invested the kind of money he did. If my (End of Tape) Stoppello: ... Leslie decided not to develop that land and left it as a pasture, under current ACHD policies when Mr. Leavell develops the north side or whatever, there's a great possibility they would require some stub into the Leslie/Crow property. I have sat here personally in front of this Council as an owner of a 12 acre parcel out on South Locust Grove with Mr. Sales from ACHD. When Lost Alimotis was approved and I have 12 acres of bare land I'm farming, and all I did was ask the Council and ACHD what happens is there going to be access? I have a private road. That's the only access I have. They said it's absolutely our policy. I know have two paved streets, curb and gutter utilities on my northern boundary with a fence dividing my farmland from the street. I believe the gentleman's name is Mr. Craig Johnson, I'm sorry if I don't know is developing on the south side of Victory and Locust Grove. His first parcel he's moving to the east. He will be required, it's already in the plans to stub in to my property. Now that is the way it is. Now sometimes they make a mistake and they don't do this. They even informed Mr. Crow that on the eastern side as Mr. Shoemaker — is it Danbury? That they made an error. They did not require a stub there. They should have. Once that subdivision was approved. There was no way to get access through there. I don't care what Mr. Shoemaker says about building lots and whatever. There's no way to get access to the south. The only — Washington Street I believe is the street is basically to the south. The access through the north and Mr. Lee is here to talk about that. I wasn't involved in that and I understand the city denied any kind of access to the north. It goes through commercial property or whatever. I don't care what Mr. Coba wants to do. The choice to put that road in was ACHD. If these people have to go back through the process it will result in an obvious financial ruin. Secondly we believe the city and all entities would still approve this subdivision. That this objection is improper and would not be allowed in stopping this subdivision because this prerogative of the street lies with ACHD. In other words if this was sent it would result in the same approval we Meridian City Council Special Meeting October 22, 1998 Page 13 believe but instead we now have two people that are financially ruined. Because I guess Mr. Leavell's address was wrong on the envelope. I'm not quite sure. As I hear it I believe there were some errors there. Clearly it's my understanding, I don't speak for the City, weren't signs posted on that property about these various changes and whatever? You mean to tell you did not know about this until you filed an objection the latter part of August? The construction started the first part of August. We have a principal of law, and I'm not going to be one of these lawyers that tries to whatever, but there is a principal and one of the cases I remember is a neighbor knew that somebody was building a house or structure one foot on to his property. He sat back, he sat back watched the foundation, watched the sticks go up, watched the roof and when it almost completed is when he made his objection. As I remember that particular case the Court's ruled you waited too long. So you cannot object. I think there has been sufficient due process noticed here. Again we must look at the nature of the objection. I see this as a kin to making an objection to the color of the houses or the styles of the roofs. This is not a germane objection in my opinion. It is nothing this Council has anything to do with in my opinion. It's an ACHD requirement and policy. We do not believe their rights have been prejudiced which I believe has been referred as to what the test is. Because we believe that such an objection would be overcome and we'd be right back where we are now maybe a year down the road from now. He has received adequate notice under the constitution with the posted signs and the actual work. If he wants to object about extending the street through his property which obviously would be an eminent domain procedure, they'd have to pay him for whatever the value of that land is. If they want to hook up with the stub, that's their problem again. And he has a right to reasonable compensation, a jury trial under our law. We would ask this Council to rule as a matter of law that in fact they have not been prejudiced, that their intent of their whole objection is something that they can take up with the Ada County Highway District. Their objection has been lost and we're asking that you sirs as members of the Council approve the final plat, allow these people to finalize — they're in the last of the 9t" inning on this matter and allow them to finish what they believe they had an approval to do so and we're asking that there be findings that they have not been prejudiced. They've received adequate notice and as I said before their third objection is not with this Council, but it's still preserved in the future with ACHD when in fact ACHD if ever wants to extend that. Their rights or their property rights are protected because if ACHD wants to take that step, they'll be compensated for under our state and federal constitution. Thank you very much. I'll try to answer any questions if anybody has any for me. Anderson: Could you go over one more time where they're at on the construction? The water, sewer lines in and the bridge — Stoppello: Yes, sir. There is a bridge in the subdivision, a concrete bridge as understand that's required. And then sir all of the utilities are already in. And the irrigation water is also in. As of today, they're replacing and placing the base and rolling Meridian City Council Special Meeting October 22, 1998 Page 14 the base, and I'd defer anything to Mr. Lee here, but I believe the curb, gutter and sidewalks are scheduled for within a week. I'm sorry sir, for tomorrow and then immediately thereafter as soon as the curing the pavement, Boise Pavement is ready to go on that. Am I right on that? I don't know if there is anything left to do other than getting the plat process, the final plat. Anderson: Thank you. Corrie: Mr. Stoppello, how many entrances are there into the Sterling Creek now? Stoppello: I believe just the Washington Street entrance. Corrie: Just one. Stoppello: Yes, sir. Corrie: And how many units are there going to be in there? Stoppello: 33 residential single family and 8 potential townhouses. Corrie: Okay. Thank you. Stoppello: Mr. Leslie and Mr. Crow and also Mr. Lee can emphasize that for them this has to be done and finalized so they can develop and sell and build on the lots this fall. If it's delayed to next year, it definitely would be financial ruin. Corrie: Do we have anybody else that would like to -- Mr. Lee. Stoppello: Mr. Lee might have some comments on some of the (inaudible). GARY LEE WITH JUB ENGINEERS WAS SWORN BY THE CITY ATTORNEY. Lee: My name is Gary Lee with JUB Engineers. We're the consulting firm that has been hired by Ron Crow and Moore or Less, Inc. to prepare the plat and plans for Sterling Creek Subdivision. I guess the first thing I wanted to address is the address issue. I find it very interesting that all the different addresses that have come up for the Leavells during this hearing tonight. But over the past what nine years I have been presenting projects to the City of Meridian, we have followed a certain procedure in acquiring neighbors' addresses within 300 feet of all these zoning issue projects and that is we work with local title companies a number of them and they have a direct computer access to Ada County's Tax Assessor's rolls and they also have access to the current zoning not zoning, but parcel maps, and what they do is they take these parcel maps and identify the land that's in question, draw a circumference around it of 300 Meridian City Council Special Meeting October 22, 1998 Page 15 feet, take off all the parcel numbers. They enter those into their computer system and it prints out a single sheet with the current property owner's name, the property's address as well as the latest mailing address for tax notices and that's a direct link right into the county system. Those are provided to us. In the old days we used to take that stack of papers and sometimes they were pretty lengthy and have our secretaries type up the list so we can hand it to the City of Meridian and they can take the names and addresses right off that list. This particular development and we started doing things a little bit differently in the last months actually two years, Ron Crow the developer had brought this list from Pioneer Title that we normally get, which we didn't use at the time because we were on a mailing from the County and we get direct mailings of CD's for our computer systems with all the same information on that list, so we take that information from the CD, it goes right into an electronic spread sheet and we sort those names on that area and generate this list electronically so there isn't any retyping involved so there isn't any chance of error of us entering the wrong address or name or city or whatever it might be. So then we take that list it's on an Excel spreadsheet and we deliver that to the City Clerk for his mailing. When this came up, we got a copy of this same tax assessor notice from Shari Stiles that she had run checking what the address should be and it was dated 1998 and the address she indicated then was at 1312S.5 th I think in Meridian where their office is now, so I dug through records and looked at first our database, electronic base that we had in 1997 to verify the address that was in there and it was the one on Sunrise. And then also I pulled out that list of statements that Ron Crow had given me from Pioneer Title, looked at their address from the tax assessor in 1997 and it was the Sunrise Drive so the address that was given to the City was the best available information from the County at the time so we felt pretty comfortable that we had best data we could get our hands on. I can't explain why there was a difference in mailings that Mrs. Leavell has spoken of. All we know is that is what was on that tax assessment roll and that's what we used. The access issues I guess have kicked around from both sides so far and it is true that the County Highway District did require an extra stub street there for future traffic circulation and it's good planning and it's really required for this property because of its length. As noted earlier there's about 700 feet of common boundary there and it wouldn't be possible to provide access to the Crow property as a dead end street because we'd exceed maximum cul-de-sac lengths that are required in the city of 450 feet. So a second access was necessary and the County Highway District reaffirmed the fact that one was needed there and that's how the plan was put together and presented to you. Prior to Mr. Crow application on the annexation and preliminary plat there was a I believe it was a conditional use permit, I don't really remember at this point. But Mr. Koba had submitted for his development on Fairview which is situated north of the Crow property but at the time it was separated by another parcel about an acre and a half so it was a gap there. Mr. Crow had requested that we come in and testify at the City Council hearings on that particular development stressing the need for a secondary access at that point. And the main reason then was the Five Mile Drain bisecting the property. We didn't feel that it would be advisable to put a bridge across the Five Mile Drain just to access three or four acres Meridian City Council Special Meeting October 22, 1998 Page 16 in the back there. So there was concern at that time about access to the north, but think the city and ACHD by the way were comfortable in trying to separate the commercial areas from the residential areas. They didn't want to have the residential traffic going through that commercial zone right on to Fairview and neither did the highway district. So that particular access was exhausted and was pointed out earlier that Danbury Subdivision (inaudible) and one other area that hadn't been mentioned was a little subdivision called Kathy Sub. Which is right on the south boundary of Sterling Creek. There's a private street there but it is private and we can't take access there as well. So the only accesses available were Washington Street and Badley. I don't believe I have any other testimony to give and I'd be glad to answer any technical questions about the subdivision. Corrie: Any questions of Mr. Lee? Bird: I have none. Bentley: I have none. Corrie: Mr. Stoppello is that your— Stoppello: (Inaudible — off the microphone) Corrie: At this time Mr. Shoemaker if you have a reply to anything that's come up. Shoemaker: Yes, thank you Mr. Mayor. I'll try to be brief. I want to respond to the equities or lack of equities argument that Mr. Stoppello talked about and I think it is important for the Council to listen to and think about whether someone's been sitting on their hands or otherwise. I think the record shows the Leavells acted properly based upon the information they had including and I'll stick to my words the false information or half truth not incidentally which I didn't hear Mr. Lee rebut the statements contained in your findings and conclusions of a year ago October 24, 97. The Leavells when I was on vacation when they came back from theirs on August 5, they ran down and talked to Shari Stiles. And informed here or that it was a holocaust for them. They first learned that a public street was going to be extended through their multi family housing complex. Now we haven't heard from Mrs. Stiles. I don't know who she talked to. I can't believe she didn't talk to Mr. Crow and inform him of the potential problem but we do know that when I got back from my vacation on August 28, 1 came out and looked at the property, met with the Leavells, looked at the copies of the documents we got from Mrs. Stiles and acted as fast as I could on the heals of a vacation and wrote you all a letter dated August 28th. We tried to set out the facts completely and accurately. Today is by my calendar seven weeks later, and I can submit to you having been on the property or around it almost every week for the last seven weeks, that Mr. Crow and his partners and his developers have not been doing the opposite of sitting on their hands. Meridian City Council Special Meeting October 22, 1998 Page 17 They have been moving pell-mell as fast as they can trying to put streets, roads and gutters in when they've known or should have known for at least five weeks if not seven weeks that there was a substantial objection by their major next door neighbor, the Leavells. Now again I do some development of my own and I can't imagine if I or any other somebody a lot smarter than I am on notice that there is a problem like this would not only move ahead but move ahead a pace with putting in streets, roads, gutters and sidewalks when the lead requirement and I submit that it's very clear that there — that you're bound to remand it back to the Planning and Zoning Commission. I can't feel sorry for this developer and my natural inclination not incidentally is to side with the developer to feel sorry for the developer but he knew they knew full well that there was a problem and they've elected to try to skew the facts a little bit and I don't they're deserving of any sympathy. Now again we get back to the practical facts. What can we do today even if they continue to pave their subdivision that hasn't been properly noticed and has been misnoticed because of Mr. Lee's statements to Mr. Leavell. want to just circulate also one drawing from your file and again you can see surrounded in dark line the applicant's proposed subdivision. At the top of the drawing (inaudible) you'll see the double hammer head cul-de-sac I'll call it. And there is an opportunity even with the curbs and gutters still in to punch a road through a private road or a right- of-way just like you heard Mr. Stoppello say about the Leavells. Yes, contrary to the approval made by the Highway five years ago, your approval five years ago, I guess the highway district could condemn Badley Avenue through their property. I won't deny that. I've done all kinds of those lawsuits too. Cities and Counties can condemn the Empire State Building if they want to. That's not the issue. The issue is let's balance the equities and look at what's fair. There is an opportunity even with the status quo despite the fact that Mr. Crow has been going pelf melt for the last seven weeks to run a road through Mr. Coga's property. Yes, it is another alternative access. I am mindful and respect that Council's determination and the Highway District's determination generally not the mixed commercial with residential traffic. I appreciate that and respect that. But I think we need to measure that concern and weigh it against the Leavell's rights here. And I submit that had there been the kind of hearing there should have been and I'm going to quote Mr. Lee again, this kind of statement would never have been in the record. He says or the author of the Findings say quote the applicant has complied with ACHD requirements. Referring I submit to the two requisite two accesses on access and his quote made provision for the extension of Badley end quote. I think that is not an accurate statement, and I leave to you the judgment as to whether to agree with me or Mr. Stoppello. I don't believe it's an accurate statement given the conversation that I didn't hear rebutted between Mr. Leavell and Mr. Lee. I'm sorry Mr. Crow and Mr. Leavell. So I ask you to be fair to the Leavells. It's unfortunate but I don't think it's appropriate to be too sympathetic to the applicant given his activities having had the notice he's had of the concerns and the prejudice of the Leavells without repeating myself too much. I don't think the record admits of only one conclusion and that is that he Leavell's rights would be prejudiced. We all know that if the development as the applicant now proposes it, the inertia will develop so that when the Leavells get Meridian City Council Special Meeting October 22, 1998 Page 18 around to developing this subdivision, just like the applicant sat on his rights and didn't ask for access from Danbury to the east, when these houses start to get built up when the stub is already in as on Sterling Cove as the developer proposes it to be when the homes are all built up here to the north the Highway District isn't going to have any choice but to extend and I imagine Mr. Leavell, Mr. and Mrs. Leavell will be required would be required to extend a public street through their apartment complex. It will be the only choice. A public street not incidentally funded probably on the Leavell's (inaudible) so I understand what's motivating the developer, but gentlemen it Anita fair given what they knew in contrast to what the Leavells knew. Today there still is despite the utter failure of the applicant to go out and find some other access not just in '96, but today despite the other failure of Mr. Crow to do that, there is still a way to him to find another method of access other than cutting the guts out of the Leavell's apartment complex. Any questions, Mr. Mayor? Rountree: What's the date on that drawing you just referred to? Leavell: We just had it professionally drawn. We had it hand drawn before and had it professionally drawn to scale just recently. Shoemaker: October, 1998. Rountree: Okay. Corrie: Any other questions from Council? Rountree: I have none. Bird: I have none. Leavell: I would like to add one thing. Corrie: Come up here please. Leavell: I did speak with the tech review channel. Gigray: I would suggest you have the speaker identify themselves and their name and remind them they are still under oath. Leavell: My name is Lucy Leavell. And I did speak with the tech review panel at ACHD last Friday, a week ago. I spoke with Mr. Steve Arnold, Barb Camp and Mr. Dave Splat. They had been unaware of this situation up to that point and they said that we needed to find out from you if you would be rerouting that back to them or if we needed to Meridian City Council Special Meeting October 22, 1998 Page 19 petition them for a change and due to the non notice situation, they would be very willing to review it. Corrie: Okay thank you. Bentley: Mr. Mayor I have a question for Mr. Stoppello. Mr. Shoemaker referred to the August 28th letter that was sent to the City. Did you receive a copy or your clients receive a copy of that? Stoppello: That's what I said in my direct that on Saturday on October 3rd is when he received that. He was into my office I think Tuesday the earliest and you had already set this for two days ago. I had a hearing and the parties moved it two days, so that's when he got his first notice. Bentley: I just needed to verify what the date was. Thank you. Corrie: Council have any requests of staff at this point? Staff? Rountree: I was just going to say that I have questions of staff, but it doesn't relate to the procedural issue. Bentley: I have a question for Will, but I don't see him. Rountree: He just got paged. Bentley: I'll pass to Charlie. Rountree: Shari, do we have anything official in our files on the '92 or thereabout approval of the apartment complex, phase one and/or phase two? And is there a development agreement that relates to that development on record with the City of Meridian? And would there be additional requirements on the part of the owners of that property for either conditional use permit or some other public process? In your opinion. Stiles: Councilman Rountree, Mayor and Council, in reviewing the files for 1992 on the Hunter's Glenn project, the Badley extension was discussed by the City Engineer. In a statement made by Mr. Shoemaker at the meeting before the City Council on June 16tH 1992, if I could quote what he said here. It says initially the primary access for phase one is to the south. There will be an emergency access easement for phase one over a graveled road to Fairview Avenue. It will be gated at the north border of phase one just to make sure that it's used for temporary access only. As soon as there is any development on what is called on that site plan phase two and three, there will be at that time an additional access provided either through Fairview on a permanent basis but probably to the west, there is an existing right-of-way that abuts up and runs into Meridian City Council Special Meeting October 22, 1998 Page 20 what's called phase two a 50 foot right-of-way that would provide to &t . And I would assume that would be Badley. The property to the north of their existing development is zone R-8. That does not permit apartment complex. They would have to rezone to an R-15 and get a conditional use permit in order for that to be approved, and I would in my opinion the road would be required to be extended through that project. There is a development agreement. It is somewhat vague. It speaks to improvements in phase two and three as far as the amenities are concerned, but there is no where in the file even a concept of phase two and three and there is no absolutely no approval indicated. It was only for phase one. Rountree: Thank you. Bentley: Point of clarification Shari. You said that the road would have to be put in. Which road which direction? Stiles: Mr. Shoemaker's testimony was that there would either be a temporary road clear to Fairview Avenue which is a requirement in the R-15 zone that they have access to an arterial. But he also refers to an additional access probably to the west to an existing right-of-way. Bentley: And you're talking that's Badley. Stiles: I don't know exactly, but I would assume. That's the only public right-of-way there. I would think that today it would be my recommendation that their project would not have been approved because they had no public road frontage. Bentley: Thank you. Corrie: Shari, to make sure that I understand this now. Phase two that they have here has not been brought to the Council for a zoning; is that correct? It's not zoned R-15 at this point? Stiles: That's correct. Corrie: Thank you. Any other questions of our staff? Rountree: I have none. Corrie: I have a question for the city attorney at this point. Bentley: I have a question for Will. Will, on the certifieds, what procedure are we using on verifying—do we verify addresses? Or do we just go straight off what they bring in? Meridian City Council Special Meeting October 22, 1998 Page 21 Berg: Mr. Mayor, Councilman Bentley, currently the Planning and Zoning Department makes that list off of their database that they receive from the county. Is that correct Shari? Stiles: Yes, that's correct. Berg: We do not go off a list that's submitted to us by the applicant. That's today's standard. Bentley: What about at the time this was done? Berg: At the time this was done was — I don't think we had our database up to date and we were going off the applicant's submission. Bentley: And we fill out the certified envelopes? Berg: Yes, we do all the handling and mailing. Bentley: And fill out the form book and the whole — Berg: Yes and stuff the envelopes with the hearing notices. Bentley: Thank you. Berg: We also put a notice in the paper as well as check and see if the property is posted. That is done by the Planning and Zoning Department. Bentley: Thank you. Corrie: Questions for attorney? Mr. Gigray do you have any comments? Gigray: My comment would be that in my view the merits of the proposals on either side are not the issue in this particular proceeding but the facts relating to notice and the objection raised by Leavells concerning the lack of notice is the thing that is the most serious issue. My advice to the Council is if you find that notice was not provided and notice by mail is a condition precedent to zoning amendments, and it is my opinion that at least the current rulings by the Idaho Supreme Court and my own recent experience in judicial reviews before district courts is if they find that there is a lack of notice as required by the statute they will hold an amended zoning ordinance void and then it will be remanded back to the City Council with directions with regards to providing proper notice and it appears to me that that remedy may be available both as a declaratory relief action as well as a judicial review. And so I think essential question here is whether or not you would find that notice has been provided or not. The case that most Meridian City Council Special Meeting October 22, 1998 Page 22 concerns me in this regard would be McKusky v. Canyon County which is 851 P2D953 just decided in March of 1993 and I've had recent experience with this in the third district court, and so I think that's the central question. If you find that and the central question here has to do with the zoning designation on the ordinance and if a conditional use permit is granted as a subsequent action to a rezone because that then puts it in appropriate zone to grant a conditional use permit then that issue looms as well. As far as the annexation question is concerned you don't have to have public hearings for annexation and I think annexation ordinance would stand and would not be a matter which would even be of consideration for remand based on the record that I have heard so far. You have to weigh what information is before you for you to make a decision. In my opinion if you should determine that there was a notice failure here as required by the statute, then my recommendation would be that you remand the matter on zoning and rescind the action on the zoning as well as the conditional use permit and any other pending matters involving public hearings to the Planning and Zoning Commission with a directive that they give proper notice under law and that they forthwith proceed to hear these applications of the applicant. If you find that the notice was adequate given the circumstances of this particular matter and all the matters that have been presented relating to that then I'd let things stand as they are. Anderson: Mr. Mayor I have a question of legal counsel. Is there any requirement in the state or county statutes that if a property owner moves, are they bound to notify the taxing authority of their new address or is the taxing authority just have to find them? Gigray: Mr. Mayor, members of the Council, Councilman Anderson, to answer your question, it is my opinion that the record establishes that notice has been given to appropriate address to the property owner as shown of record in the Assessor's Office that notice would be proper. Rountree: Did that help? Anderson: No. Gigray: Did it answer your question? Rountree: Mr. Mayor, question for counsel could you help me with the side boards that might constitute what is a legitimate notification and what would not be considered a legitimate notification as it relates to tax rolls and where we get addresses and that sort of thing. Gigray: In my opinion I think that the City in its procedures can rely upon the information which it receives from the Assessor's office and the tax rolls because that is the official records of who is the owner and has the ownership interest in the property Meridian City Council Special Meeting October 22, 1998 Page 23 and it's that record and that type of procedure that's prescribed by the planning act with regards to who is entitled to notice of these. When noticed by mail is required. Rountree: Now if that's not a correct address, or incorrectly addressed to that address for the current location of the owner of the property in question, are we still within the bounds of it being considered a reasonable effort for notification along with the other procedures that we have to follow. Gigray: Councilman Rountree, Mr. Mayor, members of the Council, in my opinion that is all we can do and if we were on notice that that was an incorrect address by some reliable evidence, then we should provide notice also to some other address that we had notice or knowledge of. But otherwise the only notice that we're going to have is going to be that notice that is provided through the Assessor's Office and I think the procedures that we have in place are correct. And in many instances if someone appeared and said we want our notice sent to this address and we've received new information then we should follow that, but there would need to be a record made that was requested as has been done here this evening. Rountree: Mr. Mayor question for Shari. Given our experience with ACHD, a stub street in your opinion does not necessarily constitute an extension of a street. Or does it constitute an extension of the street? Stiles: Not always, no it doesn't mean that they will actually extend the road through there. Rountree: I don't have any more questions. Corrie: Any further questions Mr. Anderson? Mr. Bentley? Bentley: Yeah, I have got a question for the Clerk. You may not even be the one who does this, but I'm going to ask you. What procedure do we follow when we receive some mail returned marked undeliverable or no such address? Berg: Mr. Mayor, Councilman Bentley, members of the Council, hopefully the procedure is that we look and see what is written on the envelope and then proceed to try to find other means to send that notice. The feeling in the City Clerk's Office is we met the statutes by sending it the first time but we feel an obligation to the citizens of Meridian to try to mail it or get it sent another way if possible. I cannot tell you what the interpretation of the person that received this letter back what their view or what their initiative was. Bentley: My question is if it's returned back, do we try to verify that the address — we do put the address on the envelope? Meridian City Council Special Meeting October 22, 1998 Page 24 Berg: Yes, we do put their address on the envelopes. We actually do the mailing out and yes I would hope that the person would look and try to verify why did this return back? Did we put the wrong address on? Did we misspell the person's name? Did we do something else and try to see if there's any other means sending it or notifying them. Bentley: Thank you. Berg: I'm just going to mention one more thing Councilman Bentley. We do — not to down play this, but this is one of many certified mailings that we do get returned every day in the mail, so it's not just one project that we have to deal with, but there are quite a few not to make an excuse. Bentley: Thank you. That's all I have. Bird: I have nothing. Corrie: Council you have two items that you can do here. One of two things, you can take this matter under advisement for decision at the next regular Council meeting as stated earlier or you can make a decision on the motion this evening. What is your pleasure? Bentley: Mr. Mayor in the point of discussion I would prefer to take it under advisement. Rountree: If that is the action we take can we direct Council to evaluate questions we may have as it pertains to this so we can have that when we discuss it at the next meeting, or is this something that we have to live with for a couple of weeks and then make a decision without benefit of input from legal counsel? Gigray: Mr. Mayor and members of the Council in answer to Councilman Rountree's question it is my opinion that the Council and the Mayor have every right to ask legal counsel questions regarding these matters every bit as much as judge would be able to ask his clerk about what is appropriate in terms of rendering a decision. The thing you cannot do is talk about this among yourselves or convene at some point to discuss anything the merits of this that would be an open meeting law issue, but you certainly can confer I believe with Counsel and we're available for that and that's part of the things you pay us for. Rountree: Thank you. Anderson: I guess I'm of the opinion with work proceeding at the rate that it is on the project right now that it makes sense to me for both parties' benefit that we make a decision tonight. Meridian City Council Special Meeting October 22, 1998 Page 25 Bird: I concur. Rountree: Mr. Mayor per Mr. Anderson's comment, I don't have a problem with that, but given that he brought the ice on the discussion, I would be curious as to rationale and what direction he might be leaning so we can have some discussion there. Anderson: I guess I'm looking at this from was there any violation of policies or anything like that and how we noticed it. I guess I'm leaning that we made all reasonable attempts on notification. And I guess I'm kind of leaning in favor of taking no action on that, that we noticed the meeting properly. Bird: I concur with Councilman Anderson. I feel bad about the Leavells but I believe that everything was done in good faith. You have human errors, and they've moved around quite frequently in the last year or two. We've got a development going. I'm leaning that way to go ahead and let them go with it. Bentley: The procedure, although the property from indications was properly noticed, I don't feel the Leavells were. I feel the error unfortunately is with us. We misaddressed the envelope. I would hope seeing two of these envelopes were sent out and the second one came back, that we do a little better job of verifying the addresses and I understand the clerk's position that we have literally hundreds of these go out. Maybe it's time we institute a little better checks and balance system of verifying of addresses. It's easy to do, I've done it myself. Since I deal with this stuff all day long, it's real easy to throw a letter in the wrong hole, and throw it in the wrong mail box and normally when I do it, it's somebody's check through a letter shoot that I can't get back till the next day, because they are working. I'm inclined to see if we can't get some help from ACHD and zoning and trying to get this road straightened out. Rountree: Again, I think the question is procedural, but to the point of access, that would be my observation and opinion that the access is not mandated by ACHD, the provision for access was indicated in necessity on the plat. They didn't indicate that anyone had to provide that access other than the opportunity to provide for it in the future. So, to the access question, I don't believe that the Leavells have been wronged in that regard. There will be a stub street there. The question of what they do with their property is subject to future review by the city and ACHD. They pointed out that their drawing of their concept is October 1998, right now. I agree with Glen that yeah there was an error made, but I believe it's a mute point. The letter could've been addressed to the Sunshine address in New York. Mrs. Leavell indicated that they weren't there in March of 1996. If it would've been Boise, Idaho, it still wouldn't have been delivered. I think the intent was, and I'm not a liar, I don't believe there was any wrongful intent. don't believe that there were compounding errors. I believe the address issue is mute. The residents were not there at the time of the mailing. I would be inclined at this moment to favorably look at not taking any further action and leaving the record as it is. Meridian City Council Special Meeting October 22, 1998 Page 26 Bird: Is that a motion? Rountree: That is my opinion. Corrie: Since that is the first Councilman's words here, I'll entertain a motion. Whatever you want—see where it goes. Gigray: Mr. Mayor, just for purposes of procedure and to aid the council in forming a motion, if you seek to—if you find that the notice was given then you just simply deny the motion. If you go the other route, then you would grant the motion subject to the remand. Corrie: Is that pretty clear to the council, which way you want to? Okay, I'll entertain a motion one way or the other here. Anderson: I guess I make a motion to deny the motion, is that? Bird: I second it. Corrie: Okay, the motion has been made by Mr. Anderson to deny the motion before us, seconded by Mr. Bird. Any further discussion? Hearing none, all those in favor of the motion of denying the motion, say aye. MOTION CARRIED: Three ayes, one aye. Corrie: The motion is carried by three to one, the motion is therefore denied. At this time, I don't believe we have any further—the notice of hearing, do I hear a motion to... Bentley: Mr. Mayor, I make a motion that we go into executive session. Bird: Second. Corrie: It isn't on the agenda? I was wondering about that. Bentley: I withdraw the motion. Bird: I withdraw the second. Corrie: Do you want those photographs back? Bill, can we give him that. Gigray: They weren't admitted into evidence. Meridian City Council Special Meeting October 22, 1998 Page 27 Anderson: Mr. Mayor, I make a motion that we adjourn. Bird: Second. Corrie: Motion made and seconded that we adjourn, all in favor say aye. MOTION CARRIED: All ayes. MEETING ADJOURNED AT 8:10 APPROXIMATELY (TAPE ON FILE OF THESE PROCEEDINGS.) APPROVE: ROBERT D. CORRIE, MAYOR ATTEST: WILLIAM G. BERG, JR., CITY CLERK