HomeMy WebLinkAboutDirector's Final Order ITDBEFORE THE IDAHO TRANSPORTATION BOARD
In Re: DENIAL OF ENCROACHMENT
PERMIT APPLICATION, HAWKINS
COMPANIES COMMERCIAL
DEVELOPERS
PERMIT APPLICATION #03-09-181
Petitioner,
vs.
IDAHO TRANSFORTATION
DEPARTMENT,
Respondent.
DIRECTOR'S FINAL ORDER
This matter involves an application from Petitioner for a variance from the approach
standards of the Idaho Transportation Department ("Department") in order to obtain three
accesses to State Highway 69. The Petitioner sought a variance for three commercial accesses to
State Highway b9 within the City of Meridian impact azea. The Department denied the petition
because it failed to meet the criteria set forth in IDAPA 39.03.400.03(c), 39.42.400.04(a),
39.03.42.08 and 39.03.42.200.08, and because reasonable alternate access is available.
The Petitioner appealed the denial. The Department appointed John Magel as a hearing
officer, and a hearing was held on December 17 and 18, 2009. Mr. Magel issued his
Recommended Findings of Hearing Officer on February 12, 2010, and Supplemental
Recommended Findings of Hearing Officer on February 16, 2010, in which he reversed the
Department's denial of the requested variance. In response to the Department's motion to
reconsider, Mr. Magel issued a Memorandum Opinion and Order on Motion for Reconsideration
on April 26, 2010, in which he upheld the denial and recommended that I uphold the denial of
the variance.
DIRECTOR'S FINAL ORDER - 1
As Director of the Department, I now have jurisdiction over this matter pursuant to I.C. §
67-5245. Neither party has filed any exceptions to the Recommended Order and the time for
doing so has expired.
Mr. Magel found, among other things, that the grant of a variance to construct the three
approaches would violate I.C. § 49-202(23) prohibiting the use of a controlled access highway
by any traffic found to be incompatible with the normal and safe movement of traffic; would
violate IDAPA 39.03.42.03c approach spacing on a Type IV access control highway; the
southernmost approach would violate IDAPA 39.03.42.400.04a which requires approaches to be
located as far as practical from intersections in order to allow for safe vehicle movement; and
would violate IDAPA 39.03.42.300.07 which requires approaches to be located where they do
not create undue interference with or hazards to the free movement of normal highway traffic.
As found by Mr. Magel, the failure to comply with those requirements is sufficient cause for the
Department to deny the variance application.
In reviewing the record, I find that substantial evidence exists to support the findings of
fact made by Mr. Magel. His findings of fact aze not clearly erroneous or unsupported in the
record. Therefore, I adopt the f ndings of fact of Mr. MageI as set forth in his Memorandum
Opinion and Order on Motion for Reconsideration dated April 26, 2010, and incorporate his
findings of fact as if set forth verbatim herein. I also adopt and incorporate herein Mr. Magel's
conclusions of law as set forth in his Memorandum Opinion and Order on Motion for
Reconsideration on Apri126, 2010. I therefore accept his recommendation that the petition for a
variance by denied.
NOW THEREFORE, IT IS HEREBY ORDERED that Petitioner's application for a
variance is denied. This is a final order and is the final administrative action of the Idaho
DIRECTOR'S FINAI.ORDER - 2
Transportation Department pursuant to I.C. § 67-5271. Any party to this proceeding has the
right to judicial review of this Final Order in district court pursuant to I.C. § 67-5270.
t~.
DATED this ~~ ~ day of June, 2010.
~ C:~/
BRIAN W. NESS
Director
CERTIFICATE OF SERVICE
f
I hereby certify that on this ~~day of June, 2010, I caused to be served a true and
correct copy of the foregoing by the method indicated below, and addressed to the following:
E Don Copple
Davison, Copple, Copple &Copple
P.O. Box 1583
Boise, Idaho 83701
V U.S. MAIL
HAND DELIVERED
ERNIGHT MAIL
AX (208) 386-9428
w. ~~ ~+-
STEP ANIE L. WRIGHT
Legal Assistant
DIRECTOR'S F1NALORDER - 3
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