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HomeMy WebLinkAboutWitherell vs City of Meridian~~ ° .~~1 ~•_. A. J. Bohner BOHNER CHASAN & WALTON 1459 Tyrell Lane P.O. Box 1069 Boise, Idaho 83701 Tel. (208) 345-3760 Attorneys for Plaintiffs t(~^~' C O P Y Nn: , P.M. J U L 2 81997 J. DAVID NAVARRO, Clerk By LETICIA ELWOOD oFrurv IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA JAMES N. WITHERELL and ANN L. WITHERELL, husband and wife, and DOES 1-25, cv oc 970~203~1 CASE NO. Plaintiffs, vs. CITY OF MERIDIAN, a municipal corporation of the State of Idaho, and its duly elected Mayor, ROBERT D. CORRIE, and its Councilmen, namely WALT MORROW, RON TOLSMA, CHARLIE ROUNDTREE AND GLENN BENTLEY, Defendants. COMPLAINT COME NOW PLAINTIFFS, James N. Witherell and Ann L. Witherell, by and through their counsel of record, Anthony J. Bohner, of the firm Bohner, Chasan & Walton, and state as follows: PARTIES 1. Plaintiffs are individuals, husband aad wife, who at all relevant times were residing in Meridian, Ada Couaty, Idaho, and own residential property located therein. COMPLAINT - 1 2. Plaintiffs, Does 1 through 25, are individuals, partnerships, corporations or other entities who were in some manner injured or aggrieved by the acts and/or omissions of Defendants as alleged hereinafter. The true names of Does 1 through 25 are unknown at this time. Such Plaintiffs are therefore joined using the fictitious names Does 1 through 25 and Plaintiffs hereby seek leave to amend this Complaint at such time as the true names of Does A through Z becomes known. 3. Defendant City of Meridian is a municipal corporation located in the City of Meridian, Ada County, Idaho. Robert D. Corrie is an individual and the duly elected Mayor of the City of Meridian and was acting at all relevant times in that capacity. Walt Morrow, Ron Tolsma, Charlie Roundtree and Glenn Bentley are individuals and councilmen of the City of Meridian and were acting at all relevant times in that capacity. JURISDICTION AND VENIIE 4. This Court has jurisdiction over this action and these Defendants pursuant to and by virtue of Idaho Code §§ 1-705, 67- 5273 and 67-6521(1)(d). 5. Venue is proper in Ada County pursuant to and by virtue of Idaho Code § 67-5272. 6. Plaintiffs have exhausted all available remedies under local ordinances. GENERAL FACTS 7. On or about July 1, 1997, Defendants approved a Development Agreement, pursuant to I.C. § 67-6511A, with COMPLAINT - 2 Properties West, Inc. A true and correct copy of this Development Agreement is attached hereto and incorporated herein by reference as Exhibit A. 8. Pursuant to the Development Agreement, Defendants approved the development of certain property located within the City of Meridian, Ada County, Idaho. Prior to that approval, Defendants annexed said property and rezoned said property from Rural Transitional to Light Industrial. 9. The Defendants approved the Development Agreement without a final agreement on the Conditions, Covenants and Restrictions applicable to the development. The annexation ordinance which Defendants passed in regards to this development was passed with all development property on the east side of the property being conditional use, corner to corner, back to back. The Development Agreement approved by Defendants, however, violates this annexation ordinance in that only four lots in that Development Agreement are restricted to conditional use, a much smaller area than the annexation ordinance requires. 10. The Development Agreement approved by Defendants is violative of the City of Meridian and/or Ada County ordinances regarding setbacks for yards. The Development Agreement approved by Defendants requires only a 20 foot setback for yards which is in violation of the applicable ordinance requiring a mini.unum 30 foot setback. This 20 foot setback is also in violation of the applicable ordinance in that it includes an easement from Idaho COMPLAINT - 3 ~ ~_ . Power. The final plat proposed for this development conflicts with the Development Agreement Defendants approved. 11. Plaintiffs own residential property immediately adjacent to the property involved in the Development Agreement between the Defendants and Properties West, Inc. The development at issue has direct impact upon Plaintiffs and their property. The Development Agreement allows hours of operation between 6:00 a.m. and 10:00 p.m., failing to take into consideration the residential properties immediately adjacent to the proposed industrial project. The Development Agreement approved by Defendants fails to make any provision for light, sound or dust abatement from the industrial uses currently approved which will occur immediately adjacent to Plaintiffs' residential property. 12. The Development Agreement fails to include a condition that no hazardous materials be stored, used or allowed nest to adjoining residential properties. The Defendants failed to include this provision although the City of Meridian's Planning and Zoning Commission approved said condition. The Defendants failed to adopt other recommendations by the Planning and Zoning Commission, which failure materially and adversely affects Plaintiffs. The Development Agreement fails to protect against contamination of Plaintiffs' water source by the uses approved under the Development Agreement. 13. I.C. § 67-6511A speaks to rezoning, not the creation of a new zone, which is the intent of the City of Meridian in using this Code section. The City is also attempting to annex the COMPLAINT - 4 property, not merely rezone it. ~; I.C. ~ 67-6511A is not intended to allow local government to modify zoning or subdivision requirements, which the Development Agreement approved by defendants would do. The Development Agreement, as drafted, circumvents use permits and variance provisions that must be adhered to in all development. In these regards, this agreement must protect Plaintiffs, or adhere to the application provisions of the Idaho Code. 14. The value of Plaintiffs' property has been and will be severely diminished by Defendants' actions in approving said development which was in violation of applicable ordinances and in disregard to the health, welfare and safety of Plaintiffs. Defendants actions in approving said development has and will result in a denial of Plaintiffs' quiet enjoyment of their property. Plaintiffs have exhausted their administrative remedies and now seek judicial review of the Defendants' actions. ATTORNEY'S FEES Due to Defendants' actions, Plaintiffs have been required to retain the services of counsel and have retained the firm of Bohner, Chasan & Walton, to prosecute this action. Should Plaintiffs be successful in this action, Defendants, in addition to being responsible for Plaintiffs' costs incurred herein, should be responsible for Plaintiffs' reasonable attorney's fees incurred herein pursuant to the the Idaho Code, the Idaho Rules of Civil Procedure, or other applicable law. A reasonable attorney's fee, should this action be uncontested, is the sum of COMPLAINT - 5 ~ ~ $2,500.00 and should said action be contested, the sum of $125.00 per hour for time expended on Plaintiffs' behalf is a reasonable attorney's fee herein. CLAIM FOR RELIEF WHEREFORE, Plaintiffs pray for a judgment, order and decree of this Court against Defendants, which provides as follows: a. For a stay of all development and a stay of the subject development agreement, pending resolution of this action, pursuant to I.C. § 67-5274; b. For reversal of the approval of said Development Agreement and remand to Defendants for further proceedings consistent with the Court's order; c. For protection of Plaintiffs' interests by imposing terms and conditions on the subject development which safeguard such interests and which require compliance with such terms and conditions as a prerequisite to approval of any development agreement with Defendants; d. For Defendants to comply with all applicable city and/or county ordinances in relation to said development; e. For reasonable attorney fees; f. For costs and expenses; g. For such other and further relief as the Court may deem just and proper under the circumstances, including, but not limited to the amendment of this Complaint. COMPLAINT - 6 ~~ DATED this ~ day of July, 1997. BOFINER, CHASAN & WALTON i By ny J. Bohner COMPLAINT - 7 ~. VERIFICATION I swear under penalty of perjury and the laws of the State of Idaho that I have read the foregoing document and believe it to be true and accurate to the best of my knowledge. i' es N. Witherell SUBSCRIBED AND SWORN to before me this 7,~~ `~ day of July, 1997. it' .~ ~ iu ~~~pu NOTARY PUBLIC F IIY O ~.•' OHVQ~ My commission • N .•~ *.••' d0 expires : ~ l ~~ ~' Jr7 V : }~ • ~Q ~ :~: `N6. ~~ p• ~ p ~ .CO ~ ~••••,.? M e•~p COMPLAINT - 8 )EVEL•?iVIENT AG1tEENIEN'T THIS AGREE.VIE`i IT, made and entered into this day of , 1997, by and benveen the CITY OF MERIDLIDI, a municipal corporation of the State of Idaho, part of the Srst part, hereinafter called the "CITY", and Properties West. Inc.; parry of the second part, hereinafter called the "DEVELOPER", whose address is 1401 Shoreline Drive. Boise. Idaho 83702. WITH-ESSETH: WI~REAS, DEVELOPER is the sole owner, in law and/or eauiry, of a ce.~rairt tract of land in the County of Ada, State of Idaho, described in E.e}trbit "A" (Property), which is attached hereto and by this reference incorporated herein as if set forrh in foil; and WHEREAS, the State of Idaho legisiamre, in 1991, passed Idaho Code, 67-6511A, Deve!opment Agreements, which provides that cities may eater into development agreements with developers upon rezoning and annexation of land; and WHEREAS, the CITY has passed two development agreement ordinances, one when land is rezoned, I 1-2=116 L, and one when land is annexed, when it is also rezoned, 11 =-117 D; and WHEREAS, the DEVELOPER submitted and the CITY has approved annexation and zoning to Light Industrial (I-L) of the Property to allow a limited use light. industrial project on said Property and has submitted a subaivision plat for said Property; which was recommended for approval with conditions of the Meridian City Council; and WHEREAS, the DEVELOPER has made representations at the public hearings before the Meridian Planning and Zoning Commission and the Meridian Ciry Council as to how the Property would be developed and what improvements would be made; and WHEREAS, the CITY ha's authority to place conditions and restrictions upon annexation or rezoning of property; and { WHEREAS, the Findings of Fact and Conclusions of Law required that the DEVELOPER enter into a Development Agreement; and WI~RE.~S, the CITY, in the Findings of Fact and Conclusions of Law, anne:ted the Property subject to de-annexation if the DEVELOPER did not enter imp a Development Agreement. 6/30/97 MEDIMONT SUBDIVISION DEVELOP11gNT' AGREEi91ENT Pace 1 NOyp,1'I~REFO; , IT IS HEREBY AGREID AS FOL~ _ .VS: DEVELOPER agrees, and hereby binds his, its or their heirs, successors and assigns to this agreement, as a condition of the annexation of the Property, as follows: 1. That the above recitals aze contractual and binding and aze incorporated herein as if set forth in fiill, and the terms of this agreement cannot be altered, changed or modified without the express written consent of the CITY. 2. That DEVELOPED in accordance with its representations before the CITY, shall, on the land described in Exhibit "A": a. Develop and construct a light industrial subdivision restricted as identified in the CTIY's Zoning Ordinance, with the exception that the following uses aze not allowed: _ Asphalt and concrete operanon _ Automobile urrecking yazd and' storage - Fuel yards _ Iunk yazds - Mobile home manufacturing - Recycling plants - Solid waste transfer stations - Planned Unit Development -General planned residential b. Submit to the CITY applications for site plan review and obtain the CITY's approval thereof, prior to, and as a condition o~ the commencement of consaucdon of any builaing(s) or improvements on the property, intended for industriai or other uses. c. Submit an application fer conditional use, and obtain the CIT`I's approval thereof prior to, and as a condition o£ the commencement of construction of any buiiaing(s) or improvemems by DEVELOPER or use by DEVELOPER of Lots 6, 7, 8 and 9 of Block 2 of the Property. Said conditional use pemtit application shall contain fully detailed landscape and but7ding plans, including elevations. d. Submit a final subdivision plat application of the Property to the CITY to be approved by the CITY and recorded in the Ada County Recordes's office prior to arrv development. 6/30/97 Page 2 Iv1EDIMOM SUBDMSION DEVELOPME`IT AGREE~NT ' 3. That DE~ .OPER will file with the City Engneet(_ ,:omplete set of Improvement plans ("Improvement Plans") showing all internal streets, curbs, gutters, sidewalks, utilities, required transitional paving in Franklin Road, Pressurized mtganon facilities, pumping stations, tiling and piping of irrigation ditches, fire hydrants, sewer and water lines and appurtenances (including extensions along the e:cterior boundary of Property), common area landscaping, drainage, street and other similar signage, barricades, and other such improvemerts contemplazed within the development, which Improvement Plans, and all improvements shown thereon, shall meet the approval of the City Engineer. Said Improvement Plans shall be and are incorporazed herein and made a part hereof by reference, and are referred to herein as the Subdivision Improvements. It is agreed that the improvements to be constructed and installed by successor owners for individual building lots within the boundaries of the Property (hereafter "On-Site Improvements) shall be subject to approval by the CTTY in the normal course of the CITY's issuance of conditional use and building permits for the construction of a building on such separate lot, wuh the CTTY's remedy for the failure to construct or install such On-Site Improvemens being as provided in the Ordinances of the CITY or the denial of a Certificate of Occupancy with respect to the building constructed on said lot. The failure of the owner of a lot within the property to construct or install the On-Site Improvements on said lot shall not affect or inte:iere with the issuance of a building pettnit or a Certificate of Occupancy with respect to anv other lot within the property, provided the owner thereof is in compliance with the terms and conditions of the approvals granted for that lot by the CITY and/or the plans approved'oy the CITY for the building constructed thereon; provided that the owner of the lot is not the DEVELOPER named~herein. 4. That DEVELOPER will, at his or their own expense, . consuuct and install all Subdivision Improvemens, as wet as a~+ and all other improvements as re~riewed and approved by the CITY. 5. That DEVELOPER will construct and install all Subaivision Improvements in strir. accordance with a filed and approved piaz and Improvement Plans, and the City Standard Engineering Drawings and Standard Engineering Specifications current and in effect at the time the construction of"said improvements is accomplished. 6. That DEVELOPER will provide the City Engineer with at least fifteen (15) days advance written notification of when and what improvemenis he intends to complete and the time schedule therefor, and asaees to make such modifications and/or construct any temporary facilities necessitated by such phased construction work as shall be required and approved by the Ciry Engineer. 7'. That DEVELOPER will have "corrected" original drawittgs of the Improvement Plans prepared by a Registered Professional Engineer and~e] p~ rovement Plan`s of the Plans or a duplicate mylar copy of said Plans. P 6/30/97 Page 3 b®IMOM SUBDIVISION DEVELOPMENT AGREEMENT proposed i( ovements shall be "corrected" to shoK( ;actual constructed location (both horizontally and vertically) of the various streets, water and sewer lines, all utility lines, piped irrigation ditches, and pressurized irrigation lines and their individual building service lines, sidewalk, curb and gutter alignment and grades, etc. The "corrected" Improvement Plans shall include a "Certification" thereon, signed by the Registered Professional Engineer in charge of the work, that said Plans of the various improvements are true and correct. 3. That DEVELOPER shall, immediately upon the completion of any such constructed portion, portions, or the entirety of said development, notify the City Engineer and request his inspection and written acceptance of such completed improvements or portion thereof. 9. That DEVELOPER agrees, upon a Findins by the City Council, duly entered in the official minutes of the proceedings of the City Council thaz a portion, or portions, or the entirety of said improvements need to be completed in the interest of the health, welfare and/or safety of the inhabitants of the CITY, the DEVELOPER will, within a reasonable tithe as determined by the CITY', constntct said needed improvements, or, a he does not so construct within a reasonable time afer ~rTittea notification of such Council action, and the CITY thereafter dete.;nirtes to construct, and does construct such improvement, the DEVELOPER will pzy to the CITY the actual costs paid or incurred by the CITY for such improvemeau so constructed by the CITY, plus interest thereon at an annual inter es rate equal to the prime interest rate of First Se~.trity Bank of Idaho ~ five percent (~.0°'0) untii paid, said payment to be made in such manner and under such terms as the CITY shall order after conference wit:, the DEVELOPER Provided, however, the City Council s.5a11 not mare the Findins sec forth in this paragraph except at a re?ular er soerial meetins of the City Councii; duly held, and unless the DEVELOPER has been notified in writins of the time and place of such meeting at least three (3) days prior thereto and has been wen an opportunity to be present in person cr by counsel, and to be heard on the merit of the proposed Finding. 10. I'nat DEVELOPER asrees that upon its havins received wrinen notification from the City Engineer, that any of the requirements herein specified have not been complied with within arty phase of the Subdivision Improverneats, that the CITY shall have the rgeht to withhold the issuance of atrv Certificates of Occupancy within the Property and/or shall have the tight to withhold the providing of ctilinary water service to any parcel within the Properrv until such time as all requirements specified herein have been complied with; provided, however, the DEVELOPER shall have the right to anoear before the .City Council at any regular meeting after any Certificate of Occupancy or any water service shall have been withheld for reasons set forth in this paragraph, and shall have the right to be heard as to why such Certincate of Occupancy should be issued or water service allowed. The Council shall then decide whether said Cettiiicate of Occupancy shall be issued or water service to said parcel allowed, and its decision shall be final except that the rights of the parties are • 6/30/97 bfEDIMONT SUBDIVISION DEVELOPV~IT AGREE.~IT Page 4 preserved 'aw and equity, including, but not lim( to, the right of appeal~to a court of competent jurisdiction. 11. That DEVELOPER agrees that as security for the construction by the DEVELOPER of the Subdivision Improvements, the CITY shall require from the DEVELOPER irrevocable letter(s) of credit, cash deposit(s), certified check(s), or negotiable bond(s) as allowed under Section 11-9-606 C of the Revised and Compiled Ordinances of the City of Meridian, and the CI'T'Y shall have the right to withhold a but7ding permit with respect to any lot within the Property until the same is provided by the DEVELOPER Said improvements shall include, but not be limited to, sewer, water, curb, gutter and sidewalks, irrigation and drainage piping, pressurized irrisation system, landscaping and berming, and fencing. 12. That DEVELOPER agrees that no Certificates of Occupancy will be issued until all improvements as listed on Exhi'oit "B" are completed, unless the CITY and the DEVELOPER have entered into an addendum a~eement stated when the improvements will be completed in a phased development; in any event, no Cenificates of Occupancy shall be issued in any phase in which the improvements have not been installed, completed, and accepted by the CITY. . 13. That DEVELOPER agrees, in recognition of the unique and peculiar circumstances relative to this development, to the spec:a! conditions set forth in E.~tlttbit "B" attached hereto and by this reference made a part hereof and agrees to construct a perimeter fence around buiiaing construction areas to contain debris prior to any construction, except where roadways and stree:s for aca°ss are lccated and exceat where the CITY has agreed in writing that such fencing is not necessary. 14. That DEVELOPER agrees that those pomons of the water main or sanitary sewer lines, as identiii~ in the Improvement Plans, requiring increased line size or cannery because of future service needs originating from properties not owned by DEVELOPER and located within the vicinity of the subject development, will be constructed by the DEVELOPER. In recognition of the cost savines which can be accomplished by construction of such excess capacity and/or improvements concurrently with the facilities to be consttuaed for DEVELOPER'S purposes, and the impracticality or impossibility of constructing such excess capacity and/or improvements setiarately or at a later time, DEVELOPER agrees to desist and construct such farfities subje^ to the CTI~C's ente.~irtg i~o a late comers agreement to re.mbtarse DEVELOPER for any such eYCess capacity. DEVELOPER agrees to obtain three independent bona fide bids for the performance of such work from qualitied and resnonstble contractors and shaIl deliver copies of such bids to the CITY prior to the commeacemem of such work. Such bids shall be solicited and itemized in a manner which allows clear and specific identification of that portion of the cotLStnrction work representing excess capacity. The CTTY's obligation to enter into a late comers agreement to help DEVELOPER to pay for such costs shall be limited 6130/97 MIDIMONT SUBDIVISION DEVELOPMENT AGREE`~NT Page 5 to the low ,f such bids irrespective of whether the ,rest bidder is in fact selected by DEVELOPER to perform the work. 15. That DEVELOPER agrees that any notice required by this Agreement shall be deemed delivered if and when personally delivered or deposited in the United States mail, registered or certified mail, postage prepaid, return receipt requested, addressed as follows: CITY of Meridian: City Engineer City of Meridian 33 East Idaho Meridian, ID 83642 with copy to: Wavne G. Crookston, Jr. Fitzserald, Crookston & Fitzgerald F. 0. Box 427 iVteridiart ID 83680 DEVELOPER: Pronerries West Inc. c/o Jon L. Barnes 1401 Shoreline Drive P. 0. Box 2797 Boise. ID 83701 A party shall have the right to chance its address by deliverins to the other part' a written notification thereof. Tae parties may at any time herea$er moaify or amend this .4greemeat by a subsequent wrtte:. agreement executed by the parties. This Agreement shall not, however, be chanced orally, nor shall it be deemed modified in any way by the ac of any of the oar-•.ies herero. Nothins her ein is imeaded, nor shall it be consaued, as obligating a pary to agree to any modin"cation to this Agreement. 16. That DEVELOPER agrees to pay all recording fees necessary to record this Agreement with the Ada County Recorders office. 17. All covenants and conditions set forth herein shall be aopunenant to and ; un with the land and shall be binding upon DEVELOPER'S heirs. successors or assims. 18. This Agreement shall become valid and binding only upon its approval by the City Councl and execution of the Mavor and Cirv Clerk. " 19. Thaz DEVELOPER agrees to abide by all ordinances of the CTIY of Meridian and the property shall be subject to de-annexation if the owner or his assi®s, heirs, or successors shall not meet the conditions contained in the Finainvs of Fan and Conclusions of Law, this Development A~eemeat, and the Ordinances of the CITY of Meridian. 6/30/97 MIDIMONT SUBDIVISION DEVELOPMENT AGREE:I~i 1T Page 6 DATED the date,l_,,nth and year first appearing. ~ ' DEVELOPER By Jon L. Barnes, president CITY OF MERIDL~~I Robert D. Cowie, Mayor William G. Berk Jr., Ciry Cler't 6/30/97 MIDIMONT SUBDIVISION DEVELOPMENT AGREIItifENT Page 7 STATE OF IDAHO ) ~ ~ County of Ada ss. On this day of .1997, before me, the undersigned, a Notary Public in and for said State, personally appeared Jon L. Barnes, known, or proved to me, to be the President of Properties West, Inc., who executed the foregoing instrument, and acknowledged to me that he executed the same on behalf of such corporation. L^I WI'INESS WHEREOF, I have hereunto set my hand and affixed my official seal, the day and year in this certificate first above written. (SEAL,) STATE OF IDAHO ) County of Ada Notary Public for Idaho Residing ai: My Coaunission Expires: ss. On this day of , 199 i, before me, the undersized, a ~ Iotary Public in and for said Staze, personally appeared ROBERT D. CORRIE and WILLIAi~i G. BERG, JR, known to me to be the ~[ayor and City Clerk, respectively, of the City of Meridian that executed this instrument and the persons who executed the said instrument on behalf of said corporation, and ac.~arowledged to me that said Ciry of ivferidian executed the same. ~ . LV WITNESS WHEREOF, I have hereunto set my hand and aiI'viced my official seal, the day and year in this certificate first above written. (SEAL,) Notary Publc for Idaho Residing at: My Comaussion Expires: 6/30/97 MEDIMONT SUBDIVISION DEVELOPMENT AGREIIb[ENT Pane 8 ~ ~~-J ~ DCHIBIT'A' TO THE DEVELOPMENT AGREEMENT _ ~ BY AND BETWEEN THE CITY OF MERIDIAN, IDAHO AND PROPERTIES WEST, INC. LEGAL DESCRIPTION A portion of land within the NE 1/4 of Section 18, T.3N., R.1 E., B.M., Ada County, Idaho, more particularly as follows: Commencing at a found brass cap at the section comer common to Sections 7, 8, 17 and 18 of T.3N., R.1E., B.M., at the center line intersection of Franklin Road and Locust Grove Road; thence Westerly along the center line of said Franklin Road and the section line common to Sectons 1 T and 18, South 89°46'18" West x.80.70 feet, the REAL POINT OF BEGINNING; thence leaving said center line and said section line South 02°14'38" East 187.40 feet to a set 5l8" rebar wih cap P.E./L.S.3260; thence South 00°58'43" West 494.50 feet to a sei 5/8" rebar with cap P.E./LS. 3260; thence South 19°08'1 i East 135.59 feet to a sat 5/8" rebar with cap P.ElL.S. 3260; hence South 01°25'43" West 520.56 feetto a found iron pin c;. 'the North 1/16 line of said Sec:icn 18: thence South 89°39'40" West 888.27 feet along the said 1/16 line of-said Secton 18 to the NE 1/1 c" comer of said section, from which a found 5/8" rebar bears North 00°29'39" East 0.25 feet; thence North 00°29'39" East 1,332.11 feet along said East 1/16 line to a point on the Northerly boundary bf said Secdon and the center line of said Franklin Road; thence North 89°46' 18" East 846.40 feel along said Northerly boundary and center line of Franklin Road to the RE4L POINT OF BEGINNING. Containing 26.59 acres, more or less. SUBJECT T0: All existing easements and road rights-of-way of record or appearing on the above-described parcel of land. 7- Err "B^ C ~i0 THE DEVELOPMEVT AGREEi~1T BY AND BETWEEN THE CITY OF i~RIDIAi~I, IDAHO AND PROPERTIES WEST. Inc DEVELOPER shall develop the property described in Exhibit "?." (Property) as a Light Industrial Development pursuant to §I 1-9-607 of [he ;MMerdian Zoning and Development Ordinance. 2. DEVELOPER acknowledges and agrees that it will be required to submit to the CITY an application for Conditional Use Permit pursuant to §11-?--118 of the Meridian Zoning and Development Ordinance, and obtain the CITY's approval thereof; prior to, and as a condition of, the commencement of construction of any buildines or improvements on Lots 6, 7, 8 and 9, Block 2, of the Propem, as well as for those uses specifically required to obtain a Conditional Use Permit as outlined in the CITY"'s Zoning and Development Ordinance on the remaining lots. 3.. DEVELOPER agrees to comply with all stapi and asency requirerneats. 4. DEVE-i.OPER covenants and a~*ees that, in connection with the development of the Property as may be approved by_the CITY, DEVELOPER shall. at its cost and expense, do and penorn the following: a. Bertnins and Landscanin~ -Franklin Road. Construct a landscape strip witiun the Proper ry alons the full length of the Property adjacent to the north right-of-way line of Franklin Road ("Franklin Road Landscaping"), except for ariveway accesses. Tne Franklin Road Landscaping shall be a minimum of shim-flue feet (35') in width beyond required ACHD right-of--way, includins any necessary bike lanes. Tne Franklin Road Landscaping wiil be landscaped and sprinkler irrisated, by means of pressurized irrisarion, in accordance with landscape plans to be submitted by DEVELOPER and approved by the CITY. b. Sidewalk -Franklin Road. At the time of the construction of the imnrove:neats upon the Property, constma a five-foot (5') concrete sidewalk and match paving in the public rgght-0f--way of Franklin Road along the fiill length of the Property adjacent to the north boundary of the Property ("Franklin Road Sidewalk"). The Franklin Road Sidewalk shall be constructed in accordance with the standards and specifications of the ACI-ID in etiect at the time of construction. If constriction of this sidewalk is specifically prohibited at this time, DEVELOPER shall furnish a letter from Ada County ITighway District outlining reasons for same, along with evidence of appropriate sureties for future construction of the sidewalk. EXIdIBIT "B" 6/30/97 MEDIMONT SUBDIVISION DEVELOP?~ffE~fP AGREE~?VT Page 1 of 5 c. Dedication ale of Additional Rt~ht-of-way - Frat~k,,,i Road. Dedicate or sell~land adjacent to the existing north right-of--way line of Franklin Road required to meet ACFID's requirement for a forty-five-foot (45') right-of--way from the centerline of Franklin Road, including any necessary bike lanes. d• Plantinti Strip -Eastern Boundary, provide a.permaneni, 20-foot-wide, landscaped. planting strip along the east boundary of the Medimont Subdivision as shown on the approved plat and as represented in public hearinss, as approved by the CITY, and allow no encroachment of this strip. The strip will be planted with sis- to eight-foot high Scotch pines at fifteen (15) feet on center prior to obtaining building permits and perpetually maintained to provide a screen for adjacent residential properties.. e. Plantinti Strip -Western Boundary. provide a permanent, ZO-foot-wide, landscaped easement along all other residential uses adjacent to the Propem, and allow no encroachment of this strip. f. Subdivision P!atfsl. DEVELOPER shall timely prepare, submit, and obtain the required approval by the CITY of a subdivision plat for the Property, said plat to be in conformity with the requirements of the Ordinances of the City of Meridian and State Code. g. Ptan Approvals. Timely submit and obtain, as part of the regulaz buildinti permit acquisition process, the required Certificate of Zoninti Compiance and approval by the CITY of aII drainage and g<ading plans, building plans, lighting plans, landscaping plans, parking and other plans relating to the developmem of each buildable lot within the Prope.~ty. h. Compliance wiLS ACHD Conditions of Approval. In the development of the Property, comply with the terms and conaitions of the ?,Ch'D Star Report, or as may be required by ACfID in approvine Conditional I;se Applications to be filed by DEVELOPER- In cases where ACFID's and the CITY's renditions of approval conflict, the conditions which aze more restrictive shall take orecede~ce. i. Canals. Ditches and Wate~.vavs. T'tIe all canals, ditches and other waterways and submit evidence of appropriate approvals from the irrigation district and/or downstream water users, j. Water and Seuer Service. Conned all water and sewer facilities within the Property to the municipal water and sewer service of the Ciry ofl~fetidian. All water and sewer faclities constructed or installed by DEVELOPER on the Property shall be in attendance with plans and specifications therefor which shall be first approved by the CITY. k. Landscaping -General. CODSGVCt and install all landscaped azeas, as shown on plans to be submitted and approved by the CIT'f, with grass and sprinkler initiation systems ~~~ ~~ 6/30/97 N®IMONT SUBDIVISION DEVELOPI~fEiYL AGREF.IdENT Page Z of 5 except as ( .erwise expressly noted on said approSw plans. All landscaping shall comply with the CITY's landscape requirements, particularly City Ordinance Section 11-2-414.D. Each building site shall be landscaped twenty (20) feet inside the property boundary behind the sidewalk line along arty street. Each building lot shag, as a murimum, install a seven (7) foot wide landscaped strip along all interior side lot lines between the front propeny line, behind the sidewalk, and the front line of the building. Entry drives and visual triansle requirements are exceptions to this requirement. The remainder of any required setback may be used for automobile pazking or for a different kind of landscape treatment. The twenty (20) foot landscaped azea along any street shall have a berm with an approximaze rise of three (3) feet. Landscaping shall also be required on each building lot in all front areas that aze not otherwise used for automobiie parkins. In addition to the required landscaping of required setback areas, any unpaved azeas lying within adjacent street rights-of--way shall be landscaped and maintained to the finished sidewalk by the owner or occupant of the propem-. 1. Pavins -General. r1ll parking areas and driving lanes required for a specific lot must be paved prior to obtaining a Certificate of Occupanc•. For. lots undeveloped az time of initial buiIdins construction, unpaved areas ;hall have anall-weather sur.""ace or temporary fencing, at the option ofDEVELOPER m. Pavmem of Imoaa Fees. Pay, in accordance with an orainance of the CITY in effete at the time of the application by DEVELOPER for a buiIdins permit, impact fees, transfer fees (if aooiicablel, deg+•eionmeat fees, or similar :`„ems or assessments which may be imposes upon. or by reascn of the development of :she Property, based on the uses to be developed on the Prope.~. DEVELOPER acictowiedses that at the date of this Agreement, the CITY does not have in force and effect an orainance requiring the payment of such fees, but has under consideration such an ordinance. DEVELOPER waives the risht, if any, to object to the imposition of such fees on the grounds that the Prope.•-ty was annexed and_ zoned prior to the adoption of such an ordinance. a Lishtins. All lighting wiIl be desie*ted in accoraance with Vfe:iaian Orainance Section 2-4I4.D.3 and aonroved by the Vieridian City Engineer. Ffo glare or illumination of adjacent prope.•ties, as determined by the CITY, will be permitted, including impacts to Franklin Road. o. Sienase. All sigttage within the Property shad be in accordance with the uniform Sien Code and the standards set forth in Section 11-2-115 of the Ciry of Meridian Zoning and Development Ordinance. All signaQe shall receive design approval of the Planning & Zonins Department. A-frame signs shall not be permitted. Sign permiu must be obtained from the Building Department for all signage. p. Special Setback Rewiremems. As represemed az public hearings, m;n;m„m side yard building setbacks shall be five (5) fees per story from the property line. The m;n;m~~m •EXfIIDIT "B" 6/30/97 biED1MONT SUBDIVISION DEVELOP'.btENT AGREE:VIEVT Page 3 of 5 rear yard s( lck shall be twenty (20) feet from the p~ ~erty line. Lots 3 through 10 Block 2, shall have a minimum rear yard setback of forty (40) feet. All other setbacks shall be as required in the Zoning and Development Ordinance. q. Planters Walls and Signs. Planters, walls and sign elements not exceeding three (3) feet in height maybe permitted in the front setback areas with the written approval of the CITY and DEVELOPER, subject to requirements of applicable govemmemal agencies. r. Storage Service Maintenanc° and Loadine Areas. Storage, service, maintenance and loading areas must be constructed, maintained, and used in accordance with the following conditions. (1) .Unless approved in writing by the DEVELOPER and CITY, no materials, supplies, or equipment, including trucks or other motor vehicles, shall be stored upon a site except inside a Closed building or behind a visual barrier screen of a wall or fence so as not to be visible from any streets or neighboring residential aeeas. Such visual screens shall be constructed of materials and finishes compatible with the adjacent buildings if visible from street frontage and shall be designed and placed to complement the building desi~r. Storage areas shall be located upon the reaz portions 'of the site. unless othe.~wise approved in writing by the Architey oral Control Committee and the CITY. No storage areas may extend into a setback fronrine a street. (2) Loading dock aeeas shall be set back, recessed, or screened so as not to be visible from adjacent resideatia! lots, and in no event shall a loading dock be closer than seventy-five (75) feet from a property line fronrins upon a street unless othe.~wise approved in writing by the CITY and DEVELOPER s. iVlaximum Lot Coverage. The building footprint shall not exceed fifty percent (50%) of the building lot. t. Noise Abatement. Activities conducted in rear yards adjacent to residences shall be limited to 6:00 a.m. to 10:00 p.m., or at any time winch would unreasonably disturb or interfere with the peace, comfort and repose of owners or possessors of real property. All lots within the Property shall comely with the provisions of City Ordinance No. 649 (Public Disturbance Noises). u. .Dust Abatemem. Lot owners shall perform at least yearly dust abatement on storage yards, unless said yards are paved. Upon tea (10) days notice to the property ovmer, mote frequent dust abatement may be required by the CITY. Failure to comply will result in a violation of this Development Agreement. ~~~~ ~B» 6/30/97 MEDIMONT SUBDIVISION DEVELOPMENT AGREEiIgVT Page 4 of ~ 5. Maintenance of Ii .ovements. All improvements refere~3._d is this agreement shalt be P~Pe~Y maintained by the DEVELOPER and/or their successors, heirs and assigns in a neat, aesthetically pleasing and wodanaah7ce manner. ~~]IBIT ~~ 6/30/9T MEDIMONT SUBDIVISION DEVELOPMENT AGRE>~AEM' page 5 of 5 Jan-19-99 19:33 P.O3 I~ _ 1~. y~~~ ~:t~-~,=-rUK TN THE DISTRICT COURT OF THi; FOiJR1'H JIJDICIAL DiSTR1CT OF =~: ~ a THE S'1 ATE OF IDAhIO, IN AND FOR THC COON"1'Y OF ADA WITHHRELI„ Et. Al., ) Plaintiff, ) vs, ) Cl"CY OF MER1llIAN, Et. Al., ) Uefendtm[. ) Case No- CVOC9704203D ORDL:R FOR RI?CORD Pursuant to Idaho Code §67-5275, the City of Meridian is directed to file the record of the administrative proceedings with the Clerk of chc Court for the Fourth Judicial District within 42 days from the date of this Ordcr. iT IS SO ORDL'RED. UATED this 131h day of 7anuary ,1999. j ,. , DEBORAH A- BA1L llistrici J udge JRN 19 '99 16 49 ~ PRGE.03 p.OZ Jan-19-99 19:33 1 WHITL', PE?ERSUN, PRUSS, MORROW ~ GIGRAY, P• A• ATTUKNEYS AT LAW ]N llu P. AYL$wOxTll JIII.IF. KLFIN FI5011FM WN, F. n16M1AY, 111 Il. tinM11fL JOHNaVN WuunM A. M,Tnxnw CuxlrN~r,lin ti. NYF rHILIP A. PPIIiM'~'N STLI'lll'N 1.. rRUSF TODD A. Rt~baMAN R. \TFPHFN RVTHF0.YLINP 'ItR0.ENOF R• WIIITA William C;. Berg, Jr•' (::iry Cleric Meridian City Hall 33 East Idaho Meridian, ILlahu $3642 20D EA5'1' CARLTON AVENUE, SUITE JI rosT orrice eox 11 so MERIDIAN, IUAHU 81680.1150 T7g. (10A) 2Atl•L999 FAX (20tl) Ltl8.2501 rma11 cm In(nvrl a'• wl'SQr,wVVR4: rnm January l9, 1997 Rc: WITHERP,1.1. vs CITX UI~ MERIDIAN NAMPA OFFICE 109 NINTH Avr:Nl14 SOU I H I'VS'I' UFFICP. DO% 29T NAMPA. IDAHn F)653.02A7 'frJ.l lOfi) 166A2T7 FA% (lOtl) 166~99U5 DLF.ASG RPL'LY ]'U MERIDIAN UffICR Dear Will: As you are aware, ibis marter is now properly bcforl:. the Cuurl as' a Judicial Rcvi(:w, as it had previously been inlpropcrly set Fur trial. Tam enclosing a copy uF the. "order for Record" issued ny f)istrict ludgr. 1)enorah Ball, which provides [ ha[ you have 4'L da1's to (iln the rerun) I rnm J:muary 13`1'. ro.commend that 1 hL: City fulluw the. same pruceiLlre. it. folluwcd i n Greenhill C,I arcs vs City uF M(:riJian marter , In the evens Cherc is a Failure of the. 1'et.itiuner U) pay the required fees in order m n)ccl the Filing deadline established in the "C)rder Ibr Reaxd" please advise. 1 will [hen mal<c. I hc. appa)prialc n)nl ions to the Crnlrt to deal with [hat. prublcm. IFyou rued any elarifiruion, please advise. Very truly y , r ~. F. Uigray, 111 I: c: Mayur Robert I). Comic C'.ity Council Shari Siiles, L'lanning & Zoning AnGe1 Sims nn WuhOmll w;urcr 0119Dq wed n„gY\hhq ila•\P.lrudinn Clry Fdt\LtvrrrSCirv C:Itrk PAGE.02 JRN 19 '99 16 49 r _~ ~ Office of the City Attorney 200 E. Carlton Ave. Suite 31 PO Box 1150 Meridian ID 83680-1150 Phone: 288-2499 Fax: 288-2501 E-mail: wfg@wppmg.com R,EC~rv~D To: Robert Corrie ,Mayor Will Berg, City Clerk From: Bill Gigray, City Attorney Re: Witherell v. City of Merid Date: January 14, 1999 CITY OF MERIDIAN Please be advised I appeared along with Tony Bohner Plaintiffs counsel at a status conference before Judge Deborah Bail on January 13,1999 regarding the above referenced matter. The Court granted our motion to have this matter processed as a Judicial review as it should have been handled from the beginning. For some reasons this matter was set for trial and it should be handled under the rules governing judicial review which is much more akin to an appellate procedure. The Court will issue an order governing judicial review. One the order for judicial review has been issued the Clerk's officer will need to prepare the "Estimated Fees of Agency Record Preparation" and the "Estimated Cost of ~, Transcript for Judicial Review In this case. I trust the Clerk's office has a copy of the complaint and our answer in this action which is entitled: In the District Court of the Fourth Judicial District of the State of Idaho, In and For the County of Ada; James N. Witherell ,Plaintiff, v. City of Meridian , a municipal Corporation of the State of Idaho, et al,. Defendant Case No. CV OC 9704203D. I recommend that we have a meeting between Sheri Stiles and a representative of the Clerk's officer to discuss this matter. ~ r WHITE, PETERSON, PRUSS, MORROW & GIGRAY, P.A. ATTORNEYS AT LAW JUSTIN P. AVLSWO0.TH IULIE KLEIN FISCHE0. WM. F. t'i1CRAY, 11l D. SAMUEL JOHNSON WILLIAM A. MORROW CH0.15TOPHER $. NYE PHILIP A. PETERSON STEPHEN L. PRUSE ERIC S. RDERMwN TODD A. ROSEMAN R. STEPHEN RUTIIERFO0.D TERRENCE R. WHITE Properties West, Inc. 1401 Shoreline Drive Boise, Idaho 83702 200 EAST CARLTON AVENUE, SUITE JI POST OFFICE BOX 1150 MERIDIAN, IDAHO 83680-1150 TEL (2087 288-2499 FAX (208) 288.2501 NAMPA OFFICE 104 NINTH AVENUE SOUTH POST OFFICE BOX 247 NAMPA. IDAHO R]65J~0247 TEL (108) 466.9271 FAX (20R) 4664405 Email via In[erner G5 wfgl?«'PPmg.wm PLEASE REPLY TO MERIDIAN OFFICE January 15, 1999 CERTIFIED RETURN RECEIPT Re: WITHERELL vs CITY OF MERIDIAN CASE NO. CV OC 9704203D To Whom This May Concern: Please be advised that the above entitled action has been filed. The subject of this matter pertains to the City's approval of the "Development Agreement" by and between Properties West, Inc. and the City. There was a status conference before Judge Bail, which was held on the 13`h of January. At this time Judge Bail agreed that this matter should be processed as a Judicial Review and not as a standard civil action. The court will enter an Order Governing Judicial Review. Because this matter could result in a termination of the Development Agreement, I strongly suggest that you refer this matter to your legal counsel for advise as to what Properties West, Inc. should do to protect its interests. I am also enclosing a copy of the Complaint that was filed along with a copy of the Citv's Answer. Very tru r , /~~ ~ m. F. igray, cc: Mavor Robert D. Corrie William G. Berg, Jr., City Clerlc Shari Stiles, Planning SL Zoning msg\JJ:VvlyFiles\Meridian City File\Witherell James and Ann SuitU'roperties West Itr OI 1599.wpd G b P`4" WAYNE G. CROOKSTON, JR. MERIDIAN CITY ATTORNEY l ] WEST BO WER MERIDIAN, IDAHO 83642 ~ N ~ J G+ L ,~r ~-` ~'~) ~it P~f,~,, p 3 1°98 ATTORNEY FOR DEPENDENTS CITY OF MERIDIAN. MAYOR CORRIE, AND COUNCILMEN ~. FF-EJ A.Gt, P.L1. FtB27 i°9$ a~iir IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA JAMES N. WITHERELL and ANN L. WITHERELL, husband W"ife, and DOES 1-25, Plaintiffs, -vs- CITY OF MERIDIAN, a municipal Corporation of the State of Idaho, and its duly elected Mayor, ROBERT D. CORRIE. and its Councilmen, namely W,4LT ivlp°.ROW, RON TOLSr^.A. CHARLIE ROiJNTREE, and GLENN BENTLEY, Defendants. r CASE NO. CV OC 9704203D ANSWER COMES NOW the Defendants. the City of Meridian. and its duly elected Mayor. Robert D. Corrie and its Councilmen namely. Walt Morrow. Ron Tolsma. Charlie ANSWER Rountree and Glenn Bentley, by and through its attorney of record, Wayne G. Crookston. Jr., City Attorney for the City of Meridian. and hereby answers Plaintiffs Complaint as follows: Plaintiff's Complaint fails to state a cause of action upon which relief may be granted. II Walt Morrow and Ron Tolsma aze no longer City Councilmen. and they should not be named as Defendants in this action but should be replaced with their successors. Keith Bird and Ron Anderson. III Defendants deny each and every allegation contained in Plaintiff s Complaint not. admitted herein. IV Defendants do not know the truth or falsity of the allegations contained in pazagraphs 1. 2, and 3, of Plaintiff s Complaint and therefore deny those allegations. V Defendants admit the allegations contained in pazagraphs 4 and ~ of Plaintiff s Complaint. Defendants deny each and every other allegation contained in Plaintiff s Complaint in paragraphs 6 through 14. ~SWER vII Defendants deny each and every allegation contained in the pazagraph entitled "Attorneys Fees" set forth in Plaintiff s Complaint. COiJNTERCLAIM COMES NOW the above named Defendants and for a cause of action against the Plaintiffs, assert as follows: Plaintiff s have brought this action without any bans or foundation, causing the Defendants to defend thernselves and retain the services of their counsel. Should Defendants be successful in this action, Plaintiffs, in addition to being responsible for all of Defendants costs incurred herein- should be responsible for Defendants reasonable attorneys fees incurred herein pursuant to the Idaho Code, the Idaho Rules of Civil Procedure, or any other applicable law. A reasonable attorney fees is the sum of 5125.00 per hour for the time e;tpended on Defendants behalf and such an amount is a reasonable attorney fee herein. CLAIM FOR RELIEF - WHEREFORE, the Defendants pray for judgment and decree of this court against the Plaintiffs, which provides as follows: A. For dismissal of Plaintiff s Complaint. $, For reasonable attorney fees to the Defendants. C. For costs and expenses. D. For such other and further relief as this court tray deem just and proper under the circumstances, including but not limited to the amendment of this Answer. DATED this 26th day of February, 1998. I ~ ~ - 1 ~ ~ \ ~ _ it prp YNE G. CROOKSTON. JR. MERIIDIAN CITY ATTORNEY ANSWER CERTIFICATE OF MAILING I HEREBY CERTIFY that o Q this 26th day os ~eN ervaid99m he~United true and correct copy of the foregoin_ ANSWER, po p p States mail, to the followins: A.]. Bonner BOHNER CHASAN & WALTON 1459 Tyrell Lane P.O. Box 1069 Boise, Idaho 83701 ~- j a ANSWER WHITE, PETERSON, PRUSS, MORROW SL GIGRAY, P.PL• ATTORNEYS AT LAW JusnN P. AVLEaORTx JULIE KLEIN FIRCHER WM. E CIGRAY~ Ill D. SAMUEL JOHNSON WILLIAM A. MORROW CHRISTOPHER $. NYE PHILIP A. PETERSON STEPHEN L. P0.UEE ERIC S. ROSSMAN TODD A. AOSSMAN R. STEPHEN RUTNERFORD TER0.ENCE A. WHITC 200 EAST CARLTON AVENUE, SUITE 31 POST OFFICE BOX 1150 MERIDIAN, IDAHO 87680-1150 TEL (208) 288.2499 FAX (208) 288-2501 Email via Lrrercer @ wfgCs"pPolSsom January 19, 1999 William G. Berg, Jr., City Clerlc Meridian City Hall 33 East Idaho Meridian, Idaho 83642 Re: WITHERELL vs CITY OF MERIDIAN NAMPA OFFICE 104 NINTH AVENUE SOUTH POST OFFICE BOX 247 NAMPA, IDAHO 93653.0247 TEL (209) 466-9272 FAX (108) 9fi6.4405 PLEASE ftEPL7 TO MERIDIAN OFFICE Dear Will: As you are aware, this matter is now properly before the Court as a Judicial Review, as it had previously been improperly set for trial. I am enclosing a copy of the "Order for Record" issued by District Judge Deborah Ball, which provides that you have 42 days to file the record from January 13`H. I recommend that the City followthe same procedure it followed in Greenhill Estates vs City of Meridian matter . In the event there is a failure of the Petitioner to pay the required fees in order to meet the filing deadline established in the "Order for Record" please advise. I will then make the appropriate motions to the Court to deal with that problem. If you need any clarification, please advise. Very truly y , r ~. F. Gigray, III cc: Mavor Robert D. Corrie City Council Shari Stiles, Planning & Zoning Angel Sims msg~D:\MyPiles\Meridian City FileVx¢ers\City Clerk on Widlerell marter OI 1999.wpd f.IQ, ~ ~ p'~ Y ~1'A. _` i~ ``~ ~~A.:i~. vF~1~J d ~- - ~.a IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF =~-:~:;i-"'~yL;t THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA WITHERELL, Et. Al., Plaintiff, vs. CITY OF MERIDIAN, Et. Al., Defendant. Case No. CVOC9704203D ORDER FOR RECORD Pursuant to Idaho Code §67-5275, the City of Meridian is directed to file the record of the administrative proceedings with the Clerk of the Court for the Fourth Judicial District within 42 days from the date of this Order. IT IS SO ORDERED. DATED this 13th day of January ,1999. ' DEBORAH A. BAIL District Judge // COPY IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRId1kPb~ 7 1999 THE STATE OF IDAHO, IN AND FOR THE COUNTY O& ~'~ a ~ERrRn~~Eq!erk oeau7'r WITHERELL, ET. AL., Petitioner, vs. THE CITY OF MERIDIAN, ET. AL., Respondent. CASE NO. CVOC9704203D ESTIMATED COST OF TRANSCRIPT FOR JUDICIAL REVIEW Having received a request/order for preparation of the transcript in the above- entitled matter, I hereby certify that: REQUEST FOR ANNEXATION & ZONING Type of Hearings: City of Meridian Planning and Zoning Commission Meetings Date of Hearings: December 10, 1996; January 14, 1997; February 11, 1997; Type of Hearings: City of Meridian City Council Meetings Date of Hearings: March 4, 1997; March 18, 1997; April 1, 1997; April 15, 1997 REQUEST FOR PRELIMINARY PLAT Type of Hearings: City of Meridian Planning and Zoning Commission Meetings Date of Hearings: January 14, 1997; February 11, 1997; Type of Hearings: City of Meridian City Council Meetings Date of Hearings: March 4, 1997; March 18, 1997; April 1, 1997; April 15, 1997; ESTIMATED COST OF TRANSCRIPT FOR JUDICIAL REVIEW - 1 C FINAL PLAT Type of Hearings: City of Meridian City Council Meetings Date of Hearings: July 1, 1997; Approximate number of pages: Two Hundred (200) Pages Estimated Cost at ($3.50 per page): $700.00 - (original and two copies) Pursuant to Idaho Rules of Civil P~^^°~"~P Rule 94(kl (11 (a), the Petitioner, unless otherwise ordered by a District Judge, pay the estimated fee for the preparation of the transcript within fourteen (14) days after the filing of the Petition for Judicial Review and the Petitioner shall pay the balance of the fee for the transcript upon its completion. Upon payment of the estimated transcript fees, the other transcriber will prepare the transcript and lodge it with the Clerk of the District Court within fourteen (14) days from the date of payment of the estimated fees. The transcriber may make application to the District Judge for an extension of time in which to prepare the transcript. Failure to timely pay the required fees may be grounds for sanctions as the District Court deems appropriate, which may include dismissal of the Petition. Any party desiring a separate copy may obtain one pursuant to Idaho Rule of Civil Procedure i34(r). DATED this 27`h day of January, 1999. ``~v~iuiuinrrrrrq `aat``,~y ~ g'~'~,~"'~,~~'~t,,~ CITY OF RIDIAN :a CJ Gq€~r'pry7~~ '~ ':. ~' `O " BY: ~~~ _ WILLIAM G. BERG, J ., ITY CLERK ESTIMATED C~3'f'©Ip''~~p,NSCRIPT FOR JUDICIAL REVIEW - 2 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the above nd foregoing document was served by United States Mail, postage prepaid this o~ aY of January, 1999, to: A.J. Bohner BOHNER CHASAN & WALTON 1459 Tyrell Lane P.O. Box 1069 Boise, Idaho 83701 William F. Gigray, III WHITE, PETERSON, PRUSS, MORROW & GIGRAY, P.A. 200 E. Carlton Avenue, Suite 31 P.O. Box 1150 Meridian, Idaho 83680 ESTIMATED COST OF TRANSCRIPT FOR JUDICIAL REVIEW - 3 COPY NO.-- FILED A:M--~w~P.M..-- JAN 2 71999 IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTR,~I~~~NT4bFkRRO, Clerk ByKiMB6RLEY MILLER DEPUSV STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA WITHERELL ET. AL., ) Petitioner, ) vs. ) THE CITY OF MERIDIAN ET. AL., j Respondent. ) CASE NO. CVOC9704203D ESTIMATED FEES OF AGENCY RECORD PREPARATION Having received arequest/order for preparation of the Agency Record in the above-entitled matter, I hereby certify that: The cost for the preparation of the Agency Record for the.above-entitled matter is as follows: 3 -Expanding File Pockets 2 @ $2.66 each = $ 15.96 3 -Copies of Clerk's Record = 500 pages @ $0.10 per page = $ 150.00 3 -Copies of Plats = 10 plats @ $4.00 = $ 120.00 TOTAL COST FOR COPIES AND SUPPLIES = $ 300.26 (including tax) DATED this 27~h day of January, 1999. tttturt n ru urt,,, ~~~,~ OF Pt~h',z~~~'a~e,. .~ Q ~`. = 6~ - ,^ ~ nl Ti^ ti~/ '~~prnrtrt Httttt~t CITY OF MERIDIAN _~ WILLIAM G. BERG, JR., LERK ESTIMATE OF FEES OF AGENCY RECORD PREPARATION - 1 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the above and~iregoing document was served by United States Mail, postage prepaid this ~~~''~`~~day of January, 1999, to: A. J. Bohner BOHNER CHASAN & WALTON 1459 Tyrell Lane PO Box 1069 Boise, ID 83701 Attorneys for Petitioner William F. Gigray, III WHITE, PETERSON, PRUSS, MORROW & GIGRAY, P.A. 200 E. Carlton Avenue, Suite 31 P.O. Box 1150 Meridian, Idaho 83680 ( PY ESTIMATE OF FEES OF AGENCY RECORD PREPARATION - 2 BOHNER CHASAN & WALTON, L.L.C. A T T O R N E Y S A T L A W A.J. BOHNER• ANDREW M. CHASAN TIMOTHY C. WALTON •Nw a0m31ea in Oregon via Hand Delivery PARK CENTER POINTS 1459 7YI3ELL IANE ' P.O. BOX 1069 BOISE, IDAHO 83701 February 5,.1999 RECE~~ FEB - 5 1999 CITY OF MERIDIAN William G. Beres, Jr. City Clerk CITY OF MERIDIAN City Hall 33 East Idaho Avenue Meridian, ID 83642 TELEPHONE (208) 345-3760 FACSIMILE (20~,~ - aFs~ McCALL OFFICE: ASPEN VILLAGE McCALL, IDANO (20B) 6344031 Re: Witherell v. City of Meridian Agency Record and Transcript .for Judicial Review Dear Mr. Berg: Pursuant to your Estimated Fees of Agency Record Preparation and Estimated Cost of Transcript for Judial Review, please find enclosed two trust checks -- one in the sum of $300.26 (per the Estimated Fersthe EstimatedcCostPofpTranscriptnd one in the sum of $700.00 (p for Judicial Review). Please proceed accordingly. Sincerely yours, Kare. Weybright Assistant to A. J. Bohner :kw Enclosures cc: Bill Gigray, Esq. ~,~ CITY OF MERIDIAN "Hub of Treasure Valley' ' 33 E. Idaho Meridian, Idaho 83642 8884433 r_ t;ustomers i ~ Order No. Date Name p Address .t~ a ,~ /Q X370/ Pnooe: X5/5--37/00 SOLO BY CASH C.O.D. CHARGE ON ACCT. MDSE. RETD. PAID OUT D x ,121/nfilua-~ I I I / 'S I I 1 I I - ~0 ~ 5/30 (~ ~~9 Od ~d0 - 0 - /3od G'f0 9a/ 3d0~~ I I I I I I I I I All claims antl: returned goods MUSTbeaccdmpanled bylhis`tiilL't- TAX I 0 010 8 6 3 BYDCIVBd TOTAL Q ~ GS-2D2-2 vximm wrtx ~ ~ PRINTED IN U.S.A. $OYINK„ 6lU i ~MM ~. W } ? ~ ~ J J z O I a ar E. z ~ a x v i ~ z ~ O m I ~ w N O O >v o +~ . cn -~ vt U H N a~ q •~ m N ~ ~ ~o O l~ U O~ N ~ O ) ~v 6` ~ U !~ ° ~ z w v o m C U O -rl +~ G ^ ro ro ro >a -~ •~ ro ro ~ a•~ •N v Fi S.1 4 Ul a~ ~ rn w •• ~ o ~ ~r o ~+ •-~ N +~+~ -.a R. U •~ >a m u y .. V1 rooa~ q E q ~ ~ ~ N O Q (~l U .J Z O iPr ~ ~ W Q W Z fn ~ Y to w a W a ~. 0 z q O m z.-. Oi ~ ~C a o.. F < ~, ~ I f.~Q O'.N .~ ~ m N L Z; °,;a N n Y Z a m - I 4~-.y a... Ol L. mON ~m 2 . a I o I I U i i I I i J ` O J O .-~ Z ~ \ lfl F ~? N J m ~ m OaHNO ro H ZR ~ W q m ~ ' N Q ouj a q a w xo z ~ U m °° x w ° 2 w W w >+ Z fL' E _ H O E U m iw Q ~ 6 LL aroo M w !I~ l O m a a l S o- m O_ s ru .a O O O n I rn i 1 N ' 2 1 F J J ~ O ~r J ~ a 1' 2 { tan U w ~ z x 0 m i w 0 O ,~. O +~ .~ O U O r yr > H '-I Ol sa q N cal ,C O +~ N •.~ ~' ~ O r ~rn ~ • U sa O u m> ~ U ro sa o Ez s w v O tq ro G U O .~ ~ ~ ro ro C N -.a ro ro v .., a •~ ro ~ ~ >a a, ~ v ~i rn w •• \ ~ \ ,1 '~ N ~J yJ •~ a U .N H N U ~ •• rn ro o m q E q rn rn ~ ry W Z ~ J ~ D U] J ~ ~ O a a a 3 0 q xf O I Q . Y U I I 2 I O U I W Z I - I OC > . ~ I m Z ~ a ~e w. \ I ~.m o F d' I 42v m . mom m I I a o` _ I (_ I I I V L I, I I I I .J 0 J 0 ~ Z o \ O O n 2 m J in o ~ ; m ~ m ~ H q'jy v0 q q ~ Q NWN HN QF~~ W q W W N ° ui ~ ,'~ N ° ° x o m m v z °' E W ~ Z W H s (n U O m w ~ ~ Y a o ~ oo r V ~ m ~„ rn s O rn _• s • l [~ rf7 O a ru a BOHNER CHASAN & WALTON, L.L.C~ A T T O R N E Y S A T L A W A.J. BDHNER' ANDREW M. CHASAN TIMOTHY C. WALTON PARK CENTER POINTS 1459 TYRELL IANE • P.O. BOX 1069 BOISE, IDAHO 63701 TELEPHONE (20R) 3453760 FACSIMILE (20~36~""`7d~afra McCALL OFFICE: ASPEN VILLAGE McCALL, IDAHO (100) 634-4431 •NSO aOmilletl in Oregon February 5, 1999 R,EcErv~~ Via Hand Delivery William G. Beres, Jr. City Clerk CITY OF MERIDIAN City Hall 33 East Idaho Avenue Meridian, ID 83642 FEB - 5 1999 CITY OF MERIDIAN Re: Witherell v. City of Meridian Agency Record and Transcript for Judicial Review Dear Mr. Berg: Pursuant to your Estimated Fees of Agency Record Preparation and Estimated Cost of Transcript for Judial Review, please find enclosed two trust checks -- one in the sum of $300.26 (per the Estimated Fees of Agency Record Preparation) and one in the sum of $700.00 (per the Estimated Cost of Transcript for Judicial Review). Please proceed accordingly. Sincerely yours, 1 Kare. Weybright Assistant to A. J. Bohner :kw Enclosures cc: Bill Gigray, Esq. <~ o a_y (~. ( moo. FILED A.M. P.M._ IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF T~I€g 2 4 1999 STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA J. DAVI4 NAVA.iRO, CIerN By JOANN AMIEVA OGPUTY WITHERELL ET. AL., vs. Petitioner, CASE NO. CVOC9704203D NOTICE OF FILING AGENCY RECORD THE CITY OF MERIDIAN ET. AL., Respondent. YOU ARE HEREBY NOTIFIED pursuant to Idaho Rule of Civil Procedure 84 (p) that certified copies of the official file and agency record of the City of Meridian and the original Exhibits of the proceedings held in the above entitled matter on Judicial Review to the District Court were filed February 24, 1999, in the District Court of the Fourth Judicial District of the State of Idaho, in and for the County of Ada. DATED the 24`h of February, 1999. `tttllltlflll Flll ry/JJJJ U ~G~P~Qf,~ jFO s S~.~L 9! ~~ _G 1 .Q C ', '9~ ~sT t9'~ , d" ~: ~''Ji,?JeOIJN~Il" ~Itttp~~~, CITY MERIDIAN r~~^~ ~v_ WILLIAM G. BERG, JR., CI RK NOTICE OF FILING AGENCY RECORD - 1 C CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the above and oregoing document was served by United States Mail, postage prepaid this day of February, 1999, to: A. J. Bohner BOHNER CHASAN & WALTON 1459 Tyrell Lane PO Box 1069 Boise, ID 83701 Attorneys for Petitioner William F. Gigray, III WHITE, PETERSON, PRUSS, MORROW & GIGRAY, P.A. 200 E. Carlton Avenue, Suite 31 P.O. Box 1150 Meridian, Idaho 83680 NOTICE OF FILING AGENCY RECORD - 2 COFV NO.. FNED IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTF+`~-9~-PM THE STATE OF IDAHO, IN AND WITHERELL, ET. AL., FEB 2 41999 FOR THE COUNTY OF ADA J. DAViD PJAVA~lRO, Clerk sy doa~~ aru~isva DrauTr 1 CASE NO. CVOC9704203D Petitioner, vs. THE CITY OF MERIDIAN, ET. AL., Respondent. NOTICE OF LODGING TRANSCRIPT YOU ARE HEREBY NOTIFIED pursuant to Idaho Rule of Civil Procedure 84 (o) and (p) the undersigned William G. Berg, Jr., Clerk of the City of Meridian, County of Ada, State of Idaho, lodged the transcript of the proceedings prepared for this judicial review with the above entitled court, on the 24'h day of February, 1999. The parties before the agency may pick up a copy of the transcript at the agency. Where there are more than two parties to the judicial review, they shall determine by agreement the manner and time of use of the transcript by each party, or failing such agreement, such determination shall be made by the agency upon application by any party. The parties have fourteen (14) days from the date of mailing of this notice in which to file any objections to the transcript. Upon failure of any party to file an objection within the time period, the transcript shall be deemed settled. Please be advised that a copy of said transcript was previously hand delivered to the petitioner by the undersigned on the 6'h day of January, 1999. NOTICE OF LODGING TRANSCRIPT -PAGE 1 DATED this 24th day of February, 1999. (\i ~ ~ ~ ~~~~i SEAL 9 9p~~~r is~ •, ~~ EO .` CITY OF MERIDIAN By: LLIAM G. BERG, JR., LERK NOTICE OF LODGING TRANSCRIPT -PAGE 2 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the abov and foregoing document was served by United States Mail, postage prepaid this ~ day of February, 1999, to: A.J. Bohner BOHNER CHASAN & WALTON 1459 Tyrell Lane P.O. Box 1069 Boise, Idaho 83701 William F. Gigray, III WHITE, PETERSON, PRUSS, MORROW & GIGRAY, P.A. 200 E. Carlton Avenue, Suite 31 P.O. Box 1150 Meridian, Idaho 83680 NOTICE OF LODGING TRANSCRIPT -PAGE 3 Memo To: WILL BERG From: ANGEL SIMS Date: 02/01/99 Re: JUDICIAL REVIEW / WITHERELL JUST A REMINDER THAT YOU NEED TO RECORD THE HEARINGS IN CONNECTION WITH MEDIMONT SUBDIVISION. I HAVE MADE A COPY OF MINUTES IN CONNECTION WITH THEM FOR NANCY SCHWARTZ. THE TRANSCRIPT IS DUE FEBRUARY 24, 1999. NANCY WOULD LIKE TO GET A JUMP ON THE TRANSCRIPT SO SHE'S NOT SCRAMBLING AT THE DEADLINE. THANKS. • Page 1 G Knute Drafting ~ 2 ~ ~ ~ & Design /550 C Fairview Ave (208J 888-3190 Meridian, Idaho 83642 FAX (108J 884-8316 n Name ~~~~ ~ ~ Date /_ Q 19~~ Address ~ Customer Order No. r City State Zip ~ .a I ~~ ~. e a- ~ m, --_ ~~. ~ ~ ' .3 ' ~' ~ ~~.~~ a ~ U 7 . ~d UnpaidinvoicesareoverdueNirry(]0)daysfromdamoCsmlcmeni.Pmrehasenc~rebyagreeaSUBTOTAL lobebound by lheprovisions mfUtc Uniform ConswncrCredil Cadeofrhe Salenfldahm. A 9 no late charge at Ne nu:afl°o per monN(li°/a ANNUAL PERCENTAGE RATE)may be charged om pazbdue ammunls. Ifacwunsisreferted to am aclamcy,purchaser fwlheragrees SALES TAX m pay reasonable anmmey's fee avidi ar wiNoul sui4 and all cesla ofsuil should if become , smssery. rrT~frirn~ TOTAL p / / /p ' ~ () d ~ ~ ON ACCOUNT ~~ PAID CHECK ^ CASH ^ Received By~~~~ ~1 `~~- ~'~/ G'~ /~ ~.! IN THE DISTRICT COURT OF THE FOURTH-JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADAT,~~,E~~y~ WITHERELL et al . ) 11LLtt`"' J U L 2 ''O °°199LLg ) Case No. CVOC9704203D' ~~t,l ~f ~~ l.~ffi e Petitioners, ) , vs. ) CITY OF MERIDIAN, et al. ~ Respondents. ) PETITIONERS' INITIAL BRIEF A. J.-BOhner BOHNER CHASAN & WALTON, L.L.C. 1459 Tyre11 Lane P.O. Box 1069 Boise, Idaho 83701 Attorneys for Petitioners William F. Gigray II2 White,-Peterson, Pruss, Morrow & Gigray, P.A. P.O. Box 1150.. Meridian, Idaho 83680 Attorneys for Respondents ISSUES PRESENTED ON APPEAL 4 ADDITIONAL ISSUE - ATTORNEY FEES ON APPEAL '. 4 STANDARD OF REVIEW _ 5 ARGUMENT 6 1. THE RESPONDENTS RELIED ON AN UNCONSTITUTIONAL.ZONING ORDINANCE IN ENTERING INTO THE DEVELOPMENT AGREEMENT. THE COURT SHOULD DECLARE THE DEVELOPMENT AGREEMENT NULL AND VOID AND ORDER DE-ANNEXATION OF THE PROPERTY. 6 2. THE DEVELOPMENT AGREEMENT VIOLATES AND CONFLICTS WITH THE CITY COUNCIL'S ANNEXATION ORDINANCE BY IMPERMISSIBLY RESTRICTING THE APPLICATION OF CONDITIONAL USES TO LIMITED PORTIONS OF THE PROPERTY. THE CITY VIOLATED ITS OWN CONCLUSIONS OF LAW, ITS COMPREHENSIVE PLAN AND ITS ORDINANCES BY FAILING TO REQUIRE THAT ALL LOTS WITHIN THE SUBDIVISION GO THROUGH THE CONDITIONAL .USE PROCESS. 10 3. THE DEVELOPMENT AGREEMENT VIOLATES THE CITY'S CONDITIONS FOR ANNEXATION, THE CITY'S CONDITIONS REGARDING THE PLANTING/BUFFER STRIP AND ITS ORDINANCES REGARDING UTILITY EASEMENT 16 4. BY ANNEXING, ZONING THE PROPERTY AND APPROVING THE DEVELOPMENT AGREEMENT RESPONDENTS FAILED TO SAFEGUARD THE HEALTH, WELFARE AND SAFETY OF PETITIONERS. RESPONDENTS ALSO VIOLATED THE CITY'S COMPREHENSIVE PLAN AND ORDINANCES IN TAKING THOSE ACTIONS 19 CONCLUSION 27 i Cases• Balzer v. Kootenai County Bd. of Commis, 110 Idaho 37, 714 P.2d, 6 (1986) 26, 27 Envirosafe Services of Idaho, Inc. v. Owyhee County, 112 Idaho 687, 735 P.2d 998 (1987) 7, 8 Matter of Permit N. 36-7200, 121 Idaho 819, 828 P.2d 848 (1992) . 6 Price v. Payette County Bd. of County Commis, 131 Idaho 426, 958 P.2d 583 (1998) 5 Statutes and Rules: Idaho Appellate-Rule 35(a)(5) 5 Idaho Appellate Rule 41 5 Idaho Code § 12-117 4 Idaho-Code Idaho Code Idaho Rule Idaho Rule Idaho Rule 'd' S § 12-121 § ' 67-6511A Civil Procedure 54(e)(1) . Civil Procedure 84(v) Civil Procedure 84(x) Merl tan ,lbdivision Ordinance 11-9-602 1. Meridian Subdivision Ordinance 11-9-605 . Meridian Subdivision Ordinance 1i-9-607 I 1. Meridian Zoning Ordinance 11-2-402 A 1. . . 5 . 4, 6-9 . 5 . 5 . 5 19 . 17 17 . 19 Meridian Zoning Ordinance 11-2-408 17. ii 14 ' r ' Meridian Zoning Ordinance 11-2-416 K 14, 15 Meridian Zoning Ordinance i1-2-417 A 14 Meridian Zoning Ordinance 11-2-417D 4, 7-9 Meridian Zoning Ordinance, 11-2-408 B. 14. 21,.22, 27 iii ' ~= STATEMENT OF THE CASE NATURE OF THE CASE: This is Petitioners', James N. Witherell et aI.'s, petition for judicial review of the City of Meridian City Council's approval of the annexation, zoning-and development agreement relating to the property and development of what is commonly known as the Medimont Subdivision located in Meridian, Ada County, Idaho. The City Clerk produced two notebooks of documents as well as one transcript and some loose preliminary and final plats which constitute the Clerk's Record on Appeal("C.R."). Unfortunately, the documents in each notebook are numbered sequentially,; starting with the number one. To make matters a bit more confusing, the notebook labeled Preliminary Plat/Final Plat is divided in two sections and those sections contain documents that.are both sequentially numbered; again starting with the number one. Thus there are multiple documents in the record-labeled with the same .page number. Therefore, in referring to documents in the record in this brief, reference will be made to each notebook by the name .printed on its cover.-- either "Preliminary Plat/Final Plat" or "Annexation & Zoning. Reference is made throughout this Brief to the "Locust Grove lots." These are lots 3-10 of what appears to be Block 3 in the preliminary plats of the subdivision but are contained in Block 2 of the final plat. See e.g., Final Plat, Preliminary Plat and C.R., Preliminary Plat/Final Plat, p. 39, 41. Whether these lots are part of Block 2 or 3, the important point is that the .Locust 1 ' C, ~ Grove lots referred to herein are-lots numbered 3 through 30 which run in a north/south .direction and border the eastern boundary of the subdivision and the residences which front Locust Grove Road. COURSE OF PROCEEDINGS: On January. l4, 1997, a hearing was held .'before Meridian's Planning and Zoning Commission regarding Properties West, Inc.'s, Jon L. Barnes', application for annexation and zoning of a parcel of property then situated. within Ada County and approval of a preliminary plat for Medimont Subdivision (marketed as Stone Bridge Business Park) on the same parcel of property. Transcript ("Tr."), p. 4-6. The Commission- -moved that Findings of Fact and Conclusions of Law be prepared on the annexation, zoning and preliminary plat issues. Tr., p. 55, LL..18 through p. 56, LL. 6; p. 61, LL. 7-19. On February li, 1997, the Meridian Planning and Zoning Commission adopted and approved Findings of Fact and Conclusions of .Law regarding the annexation, zoning and development agreement of the property.. The Commission also approved-the applicant's preliminary plat. C.R., Annexation & Zoning p. 111-112; Tr., p. 70, LL. 1'through p. 72 ,: LL. 2. See-also, Commission's Findings of Fact and Conclusions of Law, C.R., Annexation and Zoning, p. 88-112. On March 18, 1997, the City Council voted to have the city attorney draw up new Findings of Fact and Conclusions of Law. Tr., p. 142, LL. 10-23. The public hearing on the preliminary plat was continued until April 1, 1997, the date set for hearing 2 =, C ~ _ on the new Findings of Fact and Conclusions of Law. Tr., p. 145, LL. 22"through p, 146, LL. 11. On April 1, 1997, the City Council approved amended Findings. of Fact and Conclusions of Law. Tr., p. 156, LL. 17 through p. 157, LL. 6. The Council also decided to annex the property and zone it light industrial capable of development as allowed by the amended Findings of Fact and Conclusions of Law. The Council "also>voted to have an ordinance for annexation prepared. Tr., p• 157, LL. 7 through p. 158, LL. 11. The public hearing on the preliminary plat was continued until April 15, 1997. Tr., p- 161, LL. 8-24. On April 15, 1997, the Council approved the preliminary plat subject to all staff and ACRD conditions and subject also to the successful completion of the CC&Rs and the development agreement. Tr., p. 188, LL. 10 through p. 191, LL. 10. On July 1, 1997, the City Council approved the final plat for the Medimont Subdivision No. 1 by Properties West, Inc., -subject ,to the .receipt of the written response to staff's general comments and site-specific comments. Tr., p. 203, LL. 19 through p. 204, LL. 9. STATEMENT OF FACTS• The City Council's Findings of Fact are-set forth in the Clerk's Record, Preliminary Plat/Final Plat, p. 180- 203. The Findings of Fact accurately set forth the testimony of the parties at the hearings on this matter as far as those Findings qo. Those Findings of Fact do not, however, contain all of the facts pertinent to this appeal. Additional pertinent 3 ~ C- facts are cited below in regard to the discussion of each issue but are not repeated verbatim in this Statement of Facts. ISSIIES PRESENTED ON APPEAL 1. Whether Meridian Zoning Ordinance i1-2-417D is unconstitutional because it conflicts with I.C. § 67-6511A, rendering the development agreement null and void? 2 Whether the development agreement violates and conflicts- with the. City Council's Conclusions of'Law,and its annexation ordinance by impermissibly restricting the application of conditional uses to four lots in .the subdivision and whether the City violated its Conclusions of Law, Comprehensive Plan and ordinances by failing to require that all lots in the .subdivision go through the conditional use process? 3. ..Whether the development agreement :approved by_ Respondents violates the City's conditions for annexation and the City's ordinances? 4. Whether. the actions of Respondents in annexing, zoning and approving ,the development agreement failed to safeguard the health, welfare and safety of Petitioners and violated the City's comprehensive plan? ADDITIONAL ISSIIE - ATTORNEY FEES ON APPEAL Petitioners claim. attorney fees on appeal against the Respondent, City of Meridian, pursuant to Idaho Code § 12-117 upon the grounds and reasons that the actions of the City of Meridian in annexing and zoning the property and approving the final plat and development agreement complained of herein were 4 without a reasonable basis in fact and law as set forth-.herein. Petitioners also claim attorney fees on appeal-against Respondents pursuant to I.R.C.P. 84(v), I.R.C.P. 84(x), I.R.C.P. 54(e)(1), I.C. § 12-121 and I.A.R. 35(a)(5) and 41 for the reason that Respondents' defense of this appeal is frivolous, unreasonable or without foundation. STANDARD OF REVIEW In Price v. Payette County Bd. of County Comm_rs, 131 Idaho 426, 958 P.2d 583 , 586 (1998), the Court stated the applicable standard of review as .follows: The Idaho Administrative Procedures Act (I.A.P.A.) governs the review of local zoning decisions. See Comer v. County of Twin Falls, 130 Idaho'433, 437, 942 P.2d 557, 561`.(1997). In an appeal from the decision of a district court acting in its .appellate capacity under the.I.A.P.A.,-the Court reviews-the agency.. record independently;of th~ w~drvct court's decision. Id. (citations omitted); Canyon County Bd. of Commis, 128 Idaho. 479, 480, 915 PG2d 709, 710 (1996) (citation omitted):.. The Court does not substitute its judgment for that of the agency as to the weight of the evidence presented. I.C. § 67- 5279(1). Rather, the Court should defer to the agency's findings of fact unless they are clearly , erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265 (1998) (citing South Fork Coalition v. Board of Commis of Bonneville County, 117 Idaho 857, 860, 792 P.2d 882,..885 (1990)). In other words, the agency's factual determinations are binding on the reviewing court, even where there is conflicting .evidence before the agency, so long as the determinations are supported by substantial competent evidence in the record. Id. The Board's zoning decision may only be overturned where its findings: (a) violate statutory or constitutional provisions; (b) exceed the agency's statutory authority; m are made upon unlawful procedure; (d) are not supported by substantial evidence in the record; or (e) are arbitrary, capricious, or an abuse of discretion. Id. (citing I.C. § 67-5279(3)).. .The party. attacking the Board's _5 ~- ~ C decision, here .Price,. must first illustrate that the Board erred in a manner specified in I.C. § 67-5279(3), and then that a substantial right bf Price has been prejudiced. Id. (citing Angstman v. City 1996oise, 128 Idaho 575, 578, 917 P.2d 409, 412 (Ct.App. ))• ARGIIMENT': 1. THE RESPONDENTS RELIED~TONT*ANnumuFNnEVE OPMEN AGREEMENT. Tt1Y; t,uuni J+=~~~•- ~------- AGREEMENT NULL AND VOID AND ORDER DE-ANNEXATION OF THE PROPERTY. I.C. $ 67-6511A:addresses development agreements and states in pertinent part, "Each governing board may, by ordinance . require or permit as a condition of rezoning that an owner or developer make a written commitment concerning the use or development of the subject parcel." (emphasis added). It is a basic rule`of statutory construction that, unless the result is palpably absurd, we must assume that the legislature'means,what is clearly stated in the statute. It is also well established that statutes 'must be'interpreted to mean what the and the - legislature intended the statute to mean, . statute must be construed as a whole... Statutory interpretation always begins with an examinayion ressed literal words of the statute. The clearl exp intent-of the legislature must be given effect and there is no occasion for construction where-they when language of a statue is unambiguous.:. Finall , construing a statute, its words must be given their plain,,`usual and ;ordinary meaning. (citations omitted.)" Matter of Permit N. 96-7200, 121 Idaho 819, 822-823, 828 P.2d 848 (1992).. By its plain terms, I.C. § 67-6511A permits the City Council to enter into a development agreement with a owner or developer only as a condition of "rezoning." No "rezoning" occurred in this case. .The City Council received a request for annexation 6 ~_ r- and."zoning." The property .under consideration was located in Ada County. Annexation was required by the City before it could. determine how to zone that property. Because the property was not situated within the City limits, it could not, by definition, be "rezoned." It is clear from the record that the City never considered that it was "rezoning" the property. The City's Findings of Fact and Conclusions of Law consistently. speak of "zoning" the` property. See e.g., C.R., Annexation & Zoning, p. 208, Q 16. More importantly, the City cites Meridian Zoning Ordinance 11-2- 417D as support for entering into a development agreement in this case. C.R., Annexation & Zoning, p. 208, 4 16. That ordinance states in pertinent part, "If property is anaesed and zoned, the City may require or permit, as a_condition.of the zoning, that an owner-or developer make a written commitment concerning the use or development of the subject property. ." (emphasis added). Meridian .Zoning Ordinance i1-2-417D is unconstitutional because it conflicts with I.C. § 67-6511A. In Envirosafe Services of Idaho, Inc. v. Owyhee County, 112 Idaho 687, 735 P.2d 998 (1987), the Court discussed the rule that local ordinances may not conflict with state statutes. The Court stated, -The Zdaho Conatitutioa, art. 12, § 2, provides that county ordinances may not conflict with state statutes: The City also cites Zoning Ordinance 11-2-416L, but that ordinance does not apply because it specifically concerns situations where °property is rezoned." As discussed above, the property at issue was not "rezoned", but annexed and then zoned. 7 § 2. Local police regulations authorized:--Any county or incorporated 'city or town may make and enforce, within its limits, all such local police, sanitary and other regulations as are not in conflict with its charter or with the general laws. See also, In re Ridenbaugh, 5 Idaho 371, 49 P. 12 (1897). This grant of police power to local governments has been recognized and accorded respect by this Court• [A] municipality, under the .constitutional provision in question, [art 12, § 2] has authority to make police regulations not in conflict with general laws, co-equal with the authority of the legislature to .pass general police laws. Clyde Hess Distributing`Co. v. Bonneville County, 69 Idaho 505, 512, 210 P.2d 798, 801 (1949). The concept of "conflict" broadens when put in the context of a determination of state preemption over a field of regulation.. Of course, direct conflict (expressly.allowinq:what'the state disallows, and vice versa) is "conflict" in any sense. :state v. Musser, 67 Idaho .214, 176`P:2da199 (1946).- Additionally, a "conflict" between state aad local regulation may be implied. This state-firmly adopted the doctrine of implied preemption in Caesar v.-.State,-101 Idaho 158, 610 P.2d 51T (1980): . Where it can be inferred from a°state statute that the '.state has intended to fully occupy or preempt a particular-area, to the exclusion of [local governmental .entities], a [local] ordinance in that area will'be held to be in conflict with the state law, even`if the state law does not so specifically state. Caesar, supra,'; 101:Idaho at 161, 610 P.2d at 520. (See also, United Tavern Owners of Philadelphia v. School District of Philadelphia,-[441 Pa. 274] 272 A.2d 868 (Pa.1971); Boyle v. Campbell, 450 S.W.2d 265 (Ky.1970); In re Hubbard, [62`Cal.2d 119, 396 P.2d 809] (Ca1.1964). (emphasis, added) Id. at 689. The City's zoning ordinance 11-2-417D is in direct conflict with I.C. § 67-6511A because it expressly allows the City to enter into development agreements when property has not been rezoned whereas I.C. § 67-6511A provides that development _ _ 8 _ - ~ ~ agreements may only be entered into in situations "as a condition of rezoning." Even if the Court finds that this does not constitute a direct conflict, zoning ordinance 11-2-417D impliedly conflicts with I.C. § 67-6511A. I.C.. §'67-6511A is the only .statute within Idaho's Local Land Use Planning Act:- . addressing development agreements. It can. be inferred that the .legislature intended to fully occupy or preempt this particular area by enacting that statute. Therefore, the Court should hold that the City's local ordinance in-that area is in conflict with the state law, even if the state law does not so specifically state. The City's zoning ordinance i1-2-417D is unconstitutional - and the development agreement.entered-into in this-case is improper and void as a matter of law .because it was entered into on the authority. of that unconstitutional ordinance. The City exceeded its statutory authority by relying on an unconstitutional zoning ordinance in entering into the instant development agreement. This,Court should reverse the City Council's decision and declare the development agreement null and void. The City specifically conditioned annexation on the developer entering into a development agreement. C.R., Annexation & Zoning, p. 208. The City specifically stated that if the conditions set forth in its Conclusions of Law, which included entering into the development agreement, are not met, "the property shall not be annexed or if already annexed, it 9 ~- C_ shall be de-annexed." C.R. ,.,Annexation & Zoning, p. 211. The lack of a valid development agreement mandates de-annexation of the property. The Court should remand the matter to the City with instructions to de-annex the property. 2. THE DEVELOPMENT AGREEMENT'VIOLATES AND CONFLICTS, WITH THE CITY COUNCIL'S'ANNEXATION ORDINANCE HY IMPERMISSIBLY RESTRICTING THE APPLICATION OF CONDITIONAL USES 'TO LIMITED PORTIONS OF THE PROPERTY. THE CITY VIOLATED ITS OWN CONCLUSIONS OF LAW ITS COMPREHENSIVE PLAN AND ITS ORDINANCES BY FAILING TO RE UIRE THAT ALL LOTS WITHIN THE SUBDIVISION GO THROUGH _ THE CONDITIONAL USE PROCESS. Even if this Court finds that the development agreement was not entered into pursuant to wn unconstitutional zoning ordinance, it should still reverse the City's decision and remand for revision of the development agreement. The City Council's Conclusions of Law-state in pertinent part, 13. It is concluded, due to the statements and objections of the owners of lots and homes on Locust Grove Road which abut the subdivision proposed by the Applicant {back-to-back).. and-which lots directly abutting the subdivision but not corner.-to corner, that as a condition of annexation and zoning, any use or development of lots vrithin the proposed subdivision of the Applicant directly abuttiaq, back-to-back but not corner to corner, the mentioned homes and lots, shall 'only,be allowed under the conditional use process. . . 23. The development of the property shall be subject to and controlled by the Zoning and Development Ordinance and the development agreement, and it shall only be developed under the conditional use process. (emphasis added). C.R., Annexation & Zoning, p. 206, 211. The developer's representative, Gary Lee, wrote a letter to the Mayor and City Council in anticipation of the April 1, 1997 10 r., _~ C_ meeting in which he discusses the apparent conflict between q 13 and q 23 of the City's Conclusions of Law. Mr. Lee stated, I am having difficulty understanding two of the 26 Conclusions of Law, it appears they may be conflicting. . It appears that Item No. 13rsays a CUP [conditional use permit] is required for those lots along the easterly border that front on Locust Grove Road and that all other lots do not require`an automatic CUP unless the Zoning Ordinance requires it om it is required in the Dedelopment Agreement. However, Item 23 reads like all lots will require a CUP. Should the last part of Item No. 23 be struck? Or will the City demand CUP's on all 'lots for all uses? C.R., Annexation & Zoning, p. 213-214.' Thus the developer's own representative recognized that the City's Conclusion of Law, q 13, required that all subdivision lots along the easterly border that fronton the .residential Locust Grove lots required a CUP. On April 1, 1997, the City Council amended the Conclusions of Law q 23 to-state that the subdivision shall only be ,developed under the conditional use process as described in Condition. No. 13. Tr., p. 148, LL. 20 through p. 149, LL. 17; p. 156, LL. 6 through p. 157, LL. 6. The annexation ordinance which Respondents passed in regard to this development was passed with all development property on the east side of the property being conditional use, corner to corner, back to back. This was in accordance with the City Council's Conclusions of Law, as set forth above.- Meridian Annexation Ordinance 755 states in pertinent part, that the annexation and zoning is subject to the conditions referenced in the Findings of Fact and Conclusions of-Law as adopted by the Meridian Council on the request for annexation and zoning; that owners of lots in the subdivision to which this land is to be subdivided into aad which lot, .or lots, abuts a lot, or 11 c" land, as back to back neighbors and which abutting lot or land has frontage on-South Locust Grove Roa~he owner (hereafter referred to as Locust Grove Lots), of .the lot in the subdivision in which this land is subdivided into, must obtainia oonditioaalnuthe r ot; for an use Lna~. ~~ .--- --- -- but the owners of other lots that do not abut Locus Grove Lots do not need to obtain a conditional use permit unless-the Zoning Ordinance requires a . conditional use permit for that type of use; . (emphasis added). C.R., Annexation/Zoning, p. 223. It is undisputed that subdivision lots 3, 4, 5, 6, 7, 8, 9 and 10 of Block 2 all abut, back to back, the Locust Grove lots. See e.q., C.R., Annexation & Zoning, p. 39,.41 and Preliminary Plats included in the record. Yet the development agreement Respondents approved conflicts with Ordinance No. 755 and with the City Council's Conclusions of Law. The development agreement states in pertinent part, 2. That DEVELOPER, in accordance with its representations before the CITY, shall, on the land. described in Exhibit "A": c. Submit an application for conditional use, and obtain the CITY's approval thereof prior to and as a condition'of'the commencement of construction of any 'building(s) or improvements by DEVELOPER or use by DEVELOPER'of Lots 6 7 8-and 9 Pf Hlockp2lication Property.- Said conditional use ermit a p shall contain :fully detailed landscape and building plans, including elevations. (emphasis added). 3 C.R., Preliminary Plat/Final Plat, p. 52 - ZAs noted above, it appears that these lots were designated in Block 3 on the preliminary plats. They are in Block 2 on the final plat. These lots do abut, back to back, the Locust Grove lots. 3There are a number of different drafts of the development agreement in the two notebooks containing the clerk's record. Reference throughout this Brief is made to the development 12 ~, ~- ~ The development agreement is not in conformity with the conditions set forth in the City's Conclusions of Law and Ordinance No. 755. The development agreement is not restrictive enough and must be revised to accurately reflect the fact that 8 lots in the subdivision are required by the City's own decision to go through the CUP process, - lots 3,.4,.5, 6, 7, 8, 9 and 10 of Block 2 - not just the 4 lots mentioned in the development agreement. It was an abuse of the City's discretion to enter .into a development agreement which was-less restrictive than its own Conclusions of Law which were to control the provisions of that .development agreement. Failure by the developer to meet all of the conditions contained in the City's Findings of Fact and Conclusions of Law- . '"shall subject [the property] to de-annexation." C.R., Preliminary Plat/Final Plat, p. 56, 4 19. The subdivision and the development agreement which currently controls development in that subdivision fails to abide by the City's Conclusions of Law, justifying a de-annexation of .the property. In addition, the City violated-its own Conclusions of Law, its Comprehensive Plan and its zoning ordinances in concluding that only certain lots in the subdivision must go through the conditional-use permit process instead of deciding that all lots in the .subdivision must go through that process. As the City agreement and its exhibits contained on pages 51 through 64 of the clerk's record notebook labeled "Preliminary Plat/Final Plat." This appears to be the latest draft of the development agreement because it contains a 6/30/97 date in the bottom right- hand corner of ,the document. 13 that the Meridian Comprehensive Plan states that all, _ uses within this.Mixed/Planned Use Development Are shall-be developed as a planned unit development-under the conditional use process which will be particularly important if the proposed zoning is .approved because. of the possibility of adverse impacts)on the adjacent residential properties; and that the potential for incompatible uses is great if the.I-L, Light. Industrial,'zoning is approved without' tringent development guidelines being imposed. C.R., Annexation & Zoning, p• 186. The City adopted these comments. by directing-that the development agreement address them or meet those requirements. C.R.,_Annexation & Zoning, p. 209, q 16.j.; p. 210, 4 19. The City's zoning ordinances 'also support the conclusion that all of the lots within the subdivision should ,be subject to the conditional use process, not_just those bordering the Locust Grove lots. Meridian .zoning ordinance 11-2-408 17. defines a Mired IIse Review Area as one which "shall be developed as Planned Development General (PDG) and muat be approved as a conditional use." (emphasis added). Meridian's zoning ordinance 1i-2-416 K applies when property is annexed and zoned.- Meridian Zoning Ordinance 11-2-417 A.- The City's zoning ordinance 1i-2-416 K requires-that the Council "shall find adequate evidence answering the following questions": there been an application for a Comprehensive Plan .amendment; 5. 'Will the proposed uses be designed, constructed, operated and maintained to be harmonious and appropriate in appearance with the existing or intended character of.the:general vicinity and that such use will not change the essential character of 'the area; 6. Wi11 the proposed uses not be hazardous or disturbing to existing or future neighboring uses;.. . 9. .Will the proposed uses .not involve-uses, activities, 'processes, materials ,-.equipment and conditions of operation that will be detrimental to any persons, property or the general welfare by reason of excessive production of traffic,-noise, smoke, fumes, glare or odors; . At present, it is unknown what types of businesses will purchase the-lots within the subdivision and what-types of industrial activities those businesses will seek-to engage in. Only by requiring the conditional use process will the answers to the questions posed in zoning ordinance 11-2-416 K be'provided - prior to businesses setting up shop in the subdivision. Indeed,, that is the very purpose of the conditional use process - to .ensure that the use should be allowed in that particular area. The City violated its.-own Conclusions of Law, Comprehensive Plan and zoning ordinances by failing to require-.that all lots in the subdivision go through the conditional use permit process. The City's decision on this point exceeded the City's authority, was not supported by substantial evidence, was arbitrary, capricious and an abuse of discretion. It is interesting to note that the City's Planning and Zoning Commission did conclude that all of the lots in the subdivision should be subject to the conditional use process. C.R., Annexation-& Zoning, p. 108. The, 15 ._ ~ , Court should reverse the City's decision and remand with - instructions that all lots within the subdivision must go through the conditional use processr 3. THE DEVELOPMENT AGREEMENT VIOLATES THE CITY'S CONDITIONS: FOR ANNEXATION THE CITY'S CONDITIONS REGARDING THE 'PLANTING/BUFFER STRIP AND ITS ORDINANCES REGARDING UTILITY ;EASEMENTS... The City's-Conclusions of Law specifically state that as a condition of annexation and zoning of Light Industrial,. the Applicants shall be required to enter .into a development agreement that shall address, among other things, "j. ... the comments of the Assistant to the City Engineer and Planning and Zoning Administrator."-C.R., Annexation & Zoning, p. 208-209; p. -zio, .4 19. . -Rear Yard Setback: The City's Findings of Fact state that the Assistant to the City Engineer, Bruce Freckleton, and Shari Stiles, the Planning and Zoning Administrator, submitted comments which included "that any. contractor's yards proposed must be located a minimum distance of 300 'feet from any residence, except for an owner's residence. C.R. ,'`Annexation,& Zoning, p. 183-184, 186. Yet the development agreement approved by the City fails to contain any reference'to the required 300 foot setback from any residence. _The development .agreement.directly contradicts the requirements of the City's Conclusions of Law on this point. The development agreement states "Lots 3 through 10, Block 2, shall have `a minimum rear yard setback of forty (40) feet." C.R., Preliminary, Plat/Final Plat, p. 63. This Court should remand v- 16 A F _ ~ ~ .." i (. this case for a. revision of the development agreement so ,that it -- conforms to and abides by the conditions the City imposed--for annexation. Planting 6trip: The development agreement violates the City's conditions regarding the planting strip designed to buffer the residential Locust Grove lots from the development. The development agreement also violates the City's ordinances regarding utility easements. The City determined that a twenty-foot buffer/planting zone was appropriate for-that boundary, which is the minimum buffering mandated by its subdivision ordinance, 11- 9-607I;1. - Meridian Subdivision Ordinance 1i-9-605, addressing .'easements, states that-"total ,[utility] easement width shall not be less than ten feet (10')." Yet the development agreement provides only 'a 20-foot-wide, landscaped planting strip along the east boundary ,of the Medimont,subdivision as shown on the approved'.plat and as represented in public hearing, as approved'by the`CITY,' and allow no encroachment. of this :'strip. C.R., Preliminary Plat/Final Plat, p. 61, Exhibit B, Q 4d. There was much discussion before-the Council regarding the Idaho Power easement and how it should not decrease the amount of footage 'ascribed to-the landscaping/planting .area bordering the Locust Grove lots. At the April 1, 1997 hearing, the following colloquy took place: COMMISSIONER BENTLEY: Yes, Mr. Mayor. I have one .question to ask of Shari .[Planning and Zoning 17 . ~ , C C Administrator], and that is on the buffering issue. Is> it not designed by ordinance that they cannot use` utilities areas as `part :of the buffering? MS. STILES: Councilman Bentley and Mayor and council, yes, that is correct. The specific ordinances;excludes any of the utilities as `.part of the planting strip. COMMISSIONER BENTLEY: And in this property, are there utilityeasements? M5. STILES: Yes. COUNCILMAN,BENTLEY: Is that not part of-the plan for buffering? MS. STILES: In the proposed plat thev~show~n~?thev are utilit irn aL1vn auu ~~..---- - ---- The also showing that as-their landscape lot. . easement that has-been granted to the Idaho Power.- Company-many, many years ago, basically includes about the whole section.:..... .rThe utility poles, it shows - it- ooks ike they are right about on the property line `itself. 'So I would,thinkthat they would need '5' 0 10 feet on either side of those poles as an easement. COMMISSIONER BENTLEY: And-then the buffering.would,go beyond-that? MS. STILES: It would be required to be beyond that utility easement. (emphasis added). Tr., p.'149, LL. 18 through p. 150, LL.`25. The City required that the'footage ascribed to the planting strip on the eastern boundary`of the property should not include any footage .ascribed to utility easements. C.R., Annexation & Zoning, p. 186. Despite this discussion and the applicable ordinances, no . reference is made in the development agreement discussing the landscaping/planting strip along the east boundary of the subdivision as excluding Idaho Power's utility easement. C.R., Preliminary Plat/Final .Plat, p. 61, ~[ d. Nor does the final plat <_. ~ Power easement and the fact that the developer was required to provide a planting strip between the subdivision and the Locust Grove lots that was twenty feet wide and which did not include the area encompassed by Idaho Power's utility easement. The development agreement does not exclude Idaho Power's utility easement from he area ascribed to the planting strip, in violation of the City's Findings of Fact and Conclusions of Law and its 'ordinances. The City acted arbitrarily, captiously and abused its discretion in .approving the development agreement. This Court should remand this matter to the City to correct the .inconsistencies and deficiencies in the development agreement. 4, gY ANNEXING ZONING THE PROPERTY p.ND APPROVING THE o DEVELOPMENT AGREEMENT RESPONDENTS FAILED TO'SAFEGUARD THE HEALTH "WELFARE AND SAFETY OF PETITIONERS. RESPONDENTS ALSO VIOLATED THE~CITY'S COMPREHENSIVE PLAN AND ORDINANCES IN TAKING THOSE ACTIONS._ - The City's Conclusions of Law require as a condition of annexation that the development agreement .address certain concerns including-but not limited to "harmonizing and integrating the site improvements with the surrounding residential development and other development." C.R., Annexation `& Zoning, p. 209, qQ'e, 9• The City's zoning and subdivision ordinances both specifically state that the intent and purpose of those ordinances are to promote the City's Comprehensive Plan. See, Meridian Zoning Ordinance 11-2-402 A 1. and Meridian Subdivision Ordinance 11-9-602.1. Yet the development agreement which the City approved in this case fails to accomplish these goals. Respondents acted arbitrarily, capriciously and abused 19 9 C their discretion by entering into the development agreement, requiring that this matter be remanded for revision of the development agreement. "The City recognized that the purpose of 'the development agreement in this case was to avoid any adverse-impacts on the adjacent residential properties.. In its Findings of Fact, the City cited the Assistant City Engineer's and Planning and Zoning Administrator's'comments which 'stated,' that the Meridian Comprehensive Plan states that all uses within this Mixed/Planned Use Development area shall be developed as a planned unit development under the conditional use process which will rovedrbecauselof important if the proposed zoning is app the>possibility.of adverse .impacts on adjacent residential properties; and that the potential for -incompatible uses is great-if+the I-L, Light ` Industrial; zoning is-approved without stringent development guidelines being imposed. C.R., Annexation & Zoning, p. 186. The City made a factual -.finding-that the Applicant itself considered the purpose of entering into a development agreement was "to restrict the permitted uses of the property." C.R., Annexation & Zoning, p• 182. - The'City also noted in its Findings of Fact the following "pertinent portions of the City's Comprehensive Plan: LAND USE,; INDUSTRIAL POLICIES. . 3.4 Industrial uses adjacent to residential areas 'should not create noise, odor, air pollution, and visual pollution greater than levels normally -associated `with surrounding residential activities. 3.5. Industrial development should be encouraged to locate adjacent to existing industrial uses. . 20 ~. The purpose of the (I-L) Light Industrial District is . . to encourage the ;development of manufacturing and .wholesale establishments which are clean, `quiet and free of hazardous or;objectionableselements, such'as noise, odor,;dust, smoke or;.glare and that are operated entirely or-almost entirely .within enclosed structures. (emphasis added),. C.R., Annexation & Zoning, p. 202-203. . 'dential property located on`the Locust ~ - C 3.7 Industrial uses which require the storage or the production of explosive or hazardous materials should not be :located near residential ,areas, . Eastern-Ea le Road Li ht Industrial Review Area . . 3.14 The character, site improvements and '.type of light industrial developments should be harmonized with .the residential uses:'in this area. . 3.16U Land uses within the Eastern Light Industrial Review area must'be clean, quiet, and free .of hazardous; or objectionable elements. C.R., Annexation & Zoning, p. 200-201. The City's Zoning Ordinance, 1i-2-408 S. 14., defining-Light Industrial (I-L) states in part,- .Petitioners own rest Grove lots, immediately adjacent to the subdivision property governed by the development. agreement between the Respondents and Properties West, Inc.-- It is undisputed that the development at -issue has a direct impact upon Petitioners and their property and substantially prejudices their rights by adversely affecting their .quality of life and property values. See e.g., Tr., p. 80- 94; 120-135. The development agreement fails to protect the 9 ~- (\ e Hazardous Materials: The development .agreement fails to include a condition that no hazardous .materials be stored, used or allowed next to the adjoining residential properties. The development agreement fails to require that the establishments purchasing lots within the subdivision operate entirely or almost entirely within enclosed structures. The Respondents failed to include these provisions in the development agreement .although the City references suchconditions in its Findings of .Fact.- The City also admits that such requirements are found in the City's own Zoning Ordinance, 11-2-408 B. 14., and in its Comprehensive Plan..- C.R., Annexation & Zoning, p. 186, 200. The failure to address'thisissue also points out-the. importance of subjecting each and every lot in the subdivision o the conditional .use. process. Only by mandating that process will more individualized attention be drawn to the specific uses contemplated for-each lot. Potable pater Supply: The development agreement adopted by the City also fails to protect against contamination of. Petitioners' water source by the uses approved under that agreement. Much discussion was had regarding the risks this development posed to .the residential. owners' potable water source. .The developer's representative argued that the hard pan layer underneath the 'development would prohibit any contamination of the underlying aquifer. Tr., p. 118. This opinion was completely rebutted by Dr. Monty Wilson, a professor of geology in the geosciences department at Boise State 22 University and an Idaho registered professional geologist p. 129-130. Dr. Wilson-stated, Regarding .soils in the area of south of Franklin Road near Meridian. Most of ,the soil types along the south side of Franklin Road near Meridian-tend to have substantial amounts of hard pan. In some_places, particularly along depressions, this-hard pan is discontinuous. Ahd even where the hard pan is continuous there are fractures that penetrate, completely through it. Furthermore, a variety of human activities, such as excavation for building foundations, drilling wells or placement of septic tanks produce other breaks that may go .partially or' completely_thoughl.the'hard pan.' In some spots the hard -'pan may well be thick enough and solid enough so that it will act as a barrier to the downward migration of contaminated water-or other liquid pollutants. It is also-the fact however, that .fluids tend to flow laterally 'along the>top of the ,hard pan--.until. it reaches:a fractured ,zone, deep post hole or any or one of;the:many breaks in the hard pan.-.Obviously such a discontinuity in the hard pan provides.an'avenue through which fluids can .migrate downward 'and contaminate; the underlying aquifer. Thus, it is:absolutely incorrect to say that the hardpan will keepithe aquifer from becoming contaminated. A: particularly-useful reference about the soils in thearea-of concern is the soil survey .of Ada County_published in 1980 by the USDA Soil Conservation'Service. (emphasis added). Tr.,'p. 129,:LL. 4 through p. 130, LL. 13; C.R:, Annexation & Zoning, p. 196-197. Ernestine Robinson's, Morgan Plant's and -Robert Smith's testimony also-supported the conclusion that it was incorrect to conclude that the hard pan would keep the aquifer from becoming contaminated. Tr., p. 128-135; C.R., Annexation & Zoning, p. 196-198. Councilman Bentley expressed the same concern when he °~ I still have a problem with you talking of .the surface . water flowing because if you have .these gravel beds in' these backyards, in the backyards of your development,;` then you are going to have whatever is there flowing out towards Locust Grove, and you're going to have your contaminants moving. .And I_haven't heard any way,that `this is going to be contained. Tr., p. 138, LL. 1-9. Although-Gary Lee, .the developer's representative discussed sloping, sand and grease traps as alleviating this concern [See Tr., p. 138, LL. 16 through p. 139, LL. 3],-.the City.bompletely ignored this legitimate concern :in its Conclusions of Law and no provision was made to require the developer to address this issue in the development agreement. The City imposed no'conditions whatsoever on the developer on the potable water issue. One step toward resolving this .issue would have been to require the paving of-the backyard areas-of the development to stop ,the flow .through-the gravel bed areas. The City failed to impose this viable condition on the developer. The City's failure to address this issue in the face of substantial evidence in the record which :indicated that the issue needed to be addressed was an abuse of discretion. .This Court should remand this matter-:back to-the City in order to address the potable water issue and impose'specific conditions which protect the health of the residents immediately adjacent to this development and protect their property interests. The capricious nature'of the City's decision is well illustrated by the following passages from its Conclusions of Law: 14r Even though the COMPREHENSIVE PLAN CITY OF MERIDIAN provides under LAND USE, Eastern-Eagle Road 24 C_ Light Industrial Review Area, in 3.14 and 3.16U, at page 25, that the character „ site improvements and type of-light industrial developments should be harmonized: with the residential uses in the area,-that land uses in the Eastern Light Industrial Review area must be clean, quiet, and free-of hazardous or objectionable elements; and that the City should have control over any uses that are to be placed on 'the land; it .has been held that a city comprehensive plan is 'a guide only and is not similar to a zoning.ordinance; thatathizesywith Council understands the objections and;symp ahem on'an individual basis-and understands the. Comprehensive Plan's direction for development of_the' .area; that the duty of-the Council; however, is not to be`controlled by the interests of ,individual".property owners .and their concerns, but also the Comprehensive Plan is just that, a plan and ,:not 'controlling ordinance; that this statement that the comprehensive plan is not controlling is supported by Balzer v. Kootenai County Bd`of Commis, 110 Idaho 37, 714 P.2d 6 (1986). 14A. It-is further concluded-that this Application:has been difficult for ahe:'Counoil to decide because<of opposition` o the`Application, which could dictate that the Application should be denied but the .Meridian .Comprehensive Plan which shows the land as being in`an area shown as a.Mixed/Planned Dedelopment Area,. which would indicate that the:Application should be`approved; that.the Council understands the' objections andaympathizes with them on an 'individual basis :but also understands the Comprehensive Plan's direction for development of the area; `but the duty of the council, however, is not'`to be ,controlled by the interests of"individual`property owners:and their concerns and the Comprehensive Plan is: just that, a ' plan and hot `controlling ordinance; that this statement that the`comprehensive.plan is not controlling is supported by the above stated case of Balzer v. Kootenai County Bd of Commis. C.R., Annexation & Zoning, p. 207-208. The City wants it both ways.. The City first recognizes the City's Comprehensive Plan's mandate on harmonizing light industrial developments with residential uses in the area but then states that the Plan is not controlling. It then states that it would reject the Application because of the opposition by 25 ~_ ~ the residential landowners were it not for the Comprehensive Plan'' which shows the land as being in the Mixed/Planned Development Area. The City wants to use the Comprehensive Plan when it suits the City's position and reject the Plan when it doesn't coincide with the conclusion the City reaches. This_is arbitrary and capricious and .violative of the City's own zoning and subdivision ordinances mandating that the City must act to promote the goals of the Plan. Nor is the City's reliance on Balzer v. Kootenai County Bd. of Commis, 110 Idaho 37, 714 P.2d 6 (1986) appropriate or persuasive in .supporting its argument .that the City's comprehensive plan does not control in this case. -In Balzer, the. district-court :reversed the County Board of 'Commissioners denial of Balzers' application for a zoning change from agricultural to industrial. Id. at 38. The district court based this decision in part on the Board's failure to follow the "clear terms of its own adopted .Comprehensive Plan." Id. at 39. The :'Board 'argued on appeal that the district courterred as a matter:of law when it held that the comprehensive plan took precedence over an existing ordinance. The Court reversed stating, Subsequent to the district court's decision in this case, Bone v City of Lewiston, supra, was decided in which we specifically held that I.C. § 67-6511 does not require a zoning ordinance's land use designation to be in strict conformance with the corresponding land use designation of the comprehensive plan. . Accordingly, on the issue of whether the "[comprehensive] plan takes precedence over the pre- existing conflicting Count Ordinance No. 11, we 26 ~` ~ ~, reverse..the decision of the district court and affirm the decision of the Board of .County Commissioners. Id. at 39-40. BaSzer is inapplicable in this case because the Meridian-- Zoning Ordinance`11-2-408 B. 14., defining the purposes of Light .Industrial District, is completely consistent with Meridian's. Comprehensive Plan on the same subject. Both-,require that industrial developments be harmonized with the residential uses in the .area and be kept clean, quiet and free of hazardous or objectionable elements. The City erred as a matter of law in ignoring its Comprehensive Plan in annexing and zoning the property as light industrial and-allowing.the property's development under the development agreement in a manner .that was- not in harmony with the adjacent residential uses. It certainly acted arbitrarily and capriciously in failing o abide by its own Comprehensive-Plan-and its own zoning and subdivision ordinances. -The value of-Petitioners' property has been and will be severely diminished by Respondents' actions in approving the development which is 'in violation of the City's ordinances, the City's Comprehensive Plan and its Findings of.Fact and Conclusions of Law. -The Respondents' actions have failed to safeguard the' health, welfare and safety of Petitioners as required by law. This Court should reverse the City Council's decision in this matter. CONCLIISION For all the foregoing reasons, Petitioners respectfully .request that ;the!COUrt order: 27" ~, , a. That .Meridian Zoning Ordinance 11-2-417D be deemed unconstitutional because it conflicts with I.C. § 67-6511A, the development agreement be deemed null and void and the property be de-annexed; b. In the alternative, that each and every lot in the subdivision be subject to the conditional use process or that the development agreement be revised to reflect that all lots bordering the Locust Grove residential lots.are subject to that process; c. That the development agreement's deficiencies be corrected as discussed above; d. That Petitioners'- interests be protected by imposing. terms and conditions on the subject development which safeguard such interests and which require compliance~with_such:terms.and conditions as a prerequisite.to approval of any. development "agreement with Respondents. Because of the City's non- ` .compliance, the occupancy permit should be rescinded until all city legal-requirements have .been satisfied andindividual development plans and conditions are in full compliance; e. That Respondents comply with all ,applicable city ordinances and the comprehensive plan in relation to said development to ensure compatibility of land uses; f. That Respondents pay Petitioners' reasonable attorney fees; g. That Respondents pay Petitioners' costs and expenses; 28 ~ ~ ~ ~, ~ ~ - h. .That the Court order such further relief which'it may- deem just-and proper under the circumstances. DATED this ~d y of April, 1999. BOHNER, CHASAN & WALTON, L.L.C. By A. J 1 ner Att ey,-for Petitioners CERTIFICATE OF SERVICE I-HEREBY'CERTIFY that on the day of April, 1999 a--.true and correct copy of the within and regoing;document waslserved upon: William F. Gigray III `White, Peterson et aI. P.O. Box 1150 Meridian, Idaho 83680 by: U. S. mail - by hand;delivery-- by`facsimile by overnight mail A. J. er 29 P-~GE~V ~~ JUL 2 D 1999 'a 1aj99 Mai ,Z. - - City of Meridian City Clerk f-££ice ou~tY ~,1e~ pda G Christopher S. Nye WHITE, PETERSON, PRUSS, MORROW & GIGRAY, P.A. 200 E. Cazlton, Suite 31 Post Office Box 1150 Meridian, Idaho 83680 (208) 288-2499 Attorneys for Respondent ISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF IN THE D THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA sxzsx** CASE NO. CV OC 9704203D JAMES N. WITHERELL, ) Petitioner, ) RESPONDENT'S BRIEF v. ) CITY OF MERIDIAN, a ) municipal Corporation of the j State of Idaho, et al.> ) Respondent. ) SYNOPSIS OF THE CASE Developer, John L. Barnes applied to the City of Meridian, to have his o;opP~ty annexed into the City of Meridian and be re-zoned to light industrial. After RESPONDENT'S BRIEF - 1 C~,,G~~~ C~Oo p~ several lengthy hearings, the City granted Barne's application with special conditions. On April 1, 1997, the City entered its Findings of Fact and Conclusions of Law, and on April 15, 1997, the City adopted an ordinance finalizing the annexation and rezone. As one of the conditions granting the developer's-request, the City required the developer to enter into a Development Agreement. Tlus agreement was entered into on July 1, 1997. On July 28, 1997, Petitioner, Witherell et al, filed a petition with this Court for judidal review, alleging 1) that the City erroneously approved the annexation and rezone; 2) that the Development Agreement is unconstitutional and violates the City's ordinance; and 3) that the City's actions in annexing and zoning the development violates the City's Comprehensive Plan. FACTS On or about November 12, 1996, Developer Jon Barnes and others applied to the City of Meridian for annexation of property located in Ada County and requested the City zone the property light industrial. See A and Z, pp. 3-I5. Over the course of the next eight months, the City of.Meridian held hearings and on April 1, 1997, the City approved Findings of Facts and Conclusions of Law and Decision. See A and Z, pp. 179-212. On April 15, 1997, the City codified its Findings of Facts and Conclusions of Law into Ordinance No. 755. See A and Z, p. 222-228. RESPONDENT'S BRIEF - 2 On July 28, 1997, Petitioner filed a Complaint for judicial review. ISSUES ON APPEAL Did Petitioner fail to file a timely Complaint for judicial review? 2. Is the City of Meridian's zoning ordinance 11-2-416 and 417(b) unconstitutional? 3. Are the City of Meridian's actions in violation of Constitution and statutory provisions? 4. Have the substantial rights of Petitioner been prejudiced by the City of Meridian's actions? ADDITIONAL ISSUE -ATTORNEY'S FEES ON APPEAL The City of Meridian claims attorney's fees on appeal against Petitioner pursuant to Idaho Code § 12-117, 12-120, and Idaho Rule of Civil Procedure 54, 84, Idaho Code § 12-121, and Idaho Appellate Rule 35 and 41. STANDARD OF REVIEW Idaho Code § 67-5270 provides for an avenue of judicial review. Idaho Code § 67-5273 states: "Time for filing petition for review. -- (2) A petition for judicial review of a final order or preliminary order that has become final when it was not reviewed by the agenry head or preliminary, procedural, or intermediate agency action under § 67-5271(2), must be filed within twenty-eight (28) days of the issuance of the final order, the date when the preliminary order became final, or the issuance of a preliminary, procedural or intermediate agenry order, or, if reconsideration is sought, within twenty-eight (28) days after the decision thereon. RESPONDENT'S BRIEF - 3 (3) A petition for judicial review of a final agenry action other than a rule or order must be filed within twenty-eight (28) days of the agency action, except as provided by other provision of law. ~ one files a petition for judicial review in a timely fashion, then the district court may review the agenry's actions: The district court's scope of review is extremely narrow. Idaho Code § 67-5279 states: "(I) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. (2) When the agency was not required by the provisions of this chapter or by other provisions of law to base its action exclusively on a record, the court shall affirm the agenry action unless the court finds that the action was: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agenry; (c) made upon unlawful procedure; or (d) arbitrary, capridous, or an abuse of discretion. If the agency action is not affirmed, it shall be set aside, in whole or in part, and remanded for further proceedings as necessary. (3) When the agency was required by the provisions of this chapter or by other provisions of law to issue an order, the court shall affirm the agenry action unless the court finds that the agenry's findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agenry; (c) made upon unlawful procedure; (d) not supported by substantial evidence on the record as a whole; or (e) arbitrary, capricious, or an abuse of discretion. If the agenry action is not affirmed, it shall be set aside, in whole or in part, and remanded for further proceedings as necessary. (4) Notwithstanding the provisions of subsections (2) and (3) of this section, agenry action shall be affirmed unless substantial rights of the appellant have been prejudiced." RESPONDENT'S BRIEF - 4 As Petitioner pointed out, this court does not substitute its judgment for that of the agenry as to the weight of the evidence presented... rather the court should defer to the agenry's findings of facts unless they are rieazly erroneous. Castaneda v. Brighton, Corp.,-130 Idaho 923 (1998). The Agency's zoning decision may only then be overturned if this Court finds: a) that the Agenry violated statutory constitutional provision; b) that the Agency exceeded it statutory authority; c) that the Agenry acted upon unlawful procedure; d) that the derision is not supported by substantial evidence in the record; or e) that the Agency was arbitrary and capricious or abused its discretion. Petitioner has the burden of showing an error on the behalf of the agenry and that lus substantial rights have been prejudiced. ARGUMENT If Petitioner is successful in proving that he has been prejudiced and that the agenry has erred, than this Court's options are to set aside the agency's findings in whole or in part and remand for further proceedings as necessary. (Idaho Code § 67- 5279(3): PETITIONER'S CO DISM' SSED AS UNTIMELYE.~EW SHOULD BE Petitioner's first argument is that the zoning ordinance was unconstitutional. The ordinance in question was passed on April 15, 1997 (See A and Z pp. 222-228). RESPONDENT'S BRIEF - 5 Petitioner filed his Complaint for judidal review on July 26, _1997, some. ninety days after the annexation ordinance was passed. Idaho Code.§ 67-5273 specifically mandates that a "petition for judicial review of the final agency action must be filed within twenty-eight (28) days of the issuance of the final order or within twenty-eight (28) days of the agency action". The ordinance in question is a final action by the agency The ordinance provides for: 1) annexation or real property into the City; 2) that the annexed property be zoned IL (light industrial); 3) that the annexation and zoning is subject to the conditions referred to in the Findings of Facts and Conclusions of Law adopted by the Meri~an Council (Findings of Fads and Conclusions of Law were entered two weeks earlier on April 1, 1997); 4) that certain lots found within the annexed land must obtain a conditional use permit for any use that is desired to be placed on the lot, and that other lots need not obtain the conditional use permit unless the zoning ordinance requires a conditional use pernut for that type of use; 5) that certain uses shall not be allowed on the annexed land; and 6) that the property shall be subject to de-annexation if the owner does not meet certain requirements including the requirement that the developer enter into a Development Agreement. This action by the City. of Meridian is a final action that: annexed land, RESPONDENT'S BRIEF - 6 rezoned land, and required the developer to meet certain requirements as a condition for annexation and rezoning. MERIDIAN'S PASSAGE OF THE ORDINANCE (AND P~GGERED THE FINDINGS OF FACT S~TDUTE OF LIMIOTATIONSW) 'TRI Idaho Code § 67-5270 states: "(2) A person aggrieved by final agenry action other than an order in a contested case is entitled to judicial review under this chapter if the person complies with the requirements of sections 67-5271 through 67- 5279, Idaho Code." (3) (Likewise) A party aggrieved by a final order in a contested case decided by an agenry other than the industrial commission... is entitled to judicial review under' this chapter if the person complies with the requirements of sections 67-5271. through 67-5279, Idaho Code." Idaho Code § 67-5201 defines agenry action as: "(a) a whole or part. of a Wile or order; (b) the failure to issue a rule or order; (c) an agency's performance of or failure to perform any duty placed on it by law." Idaho Code § 67-5201 defines order as: "(12) "Order" means an agency action of particular applicability that determines the legal rights, duties, privileges, irmunities, or other legal interests of one (1) or more specific persons." When one reviews the Findings of Facts and Conclusions of Law and the subsequent ordinance, one can only conclude that the City's deterrr-ination to annex and rezone the land in question is an action that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons. It is the City's act of passing an ordinance that is the final order and it on that RESPONDENT'S BRIEF - 7 date (April 15, 1997) that the statue of limitations began to run. This line of rationale is no different than the Court's rationale in the case of Soloaga v. Bannock County, 119 Idaho 678 (Ct. App. 1990). The Court, in Soloaga interpreted former Idaho Code § 67-5215(b) and found "according to the clear wording of the above statute, the final `decision' is a condition that must occur before the limitation period will begin to operate. Consequently, we must determine what constitutes a final derision. Idaho Code section 67-5212 mandates that a final decision or order adverse to a party in a contested case shall be in writing or stated in the record..." Soloaga at p. 681. The case was remanded since Bannock County had not made a derision. Soloaga had requested Bannock County to rezone his land. The county, rather than holding a hearing, simply sent Soloaga a letter stating that his application had been voided since the county had entered into a moratorium on rezone requests. The court found that these letters voiding the application were not final decisions. Meridian, on the other hand, held contested hearings and eventually entered a lengthy Findings of Facts and Conclusions of law and an ordinance. These actions, according to Soloaga, aze appealable actions. Petitioner points to the date on which the Development Agreement was entered as the triggering date for the statute of limitations (July 1, 1997). Yet, Petitioner's argument does not center on the actual Development Agreement, but RESPONDENT'S BRIEF - 8 rather centers on the City's ordinance that requires the Development Agreement as a condition of annexation. It is this ordinance that Petitioner seeks to have declared unconstitutional, °the respondents relied on an unconstitutional zoning ordinance in entering into the development agreement" IDAHO CODE § 67-6511 ALLOWS THE CITY TO REQ~~ A DEVELOPMENT AGREEMENT AS A CONDITION OF ANNEXATION AND REZONING The land in question prior to the City of Meridian's annexation ~'~ p~ of unincorporated Ada County and zoned RT (Rural Transitional). Rural Transitional use has a primary use of agricultural and pasture land. (See A and Z p. 81). The developer requested that the City of Meridian annex the land and also rezone it Light Industrial (IL). (See application for annexation approval zoning or rezone, A and Z, pp. 2-15) Meridian Ordinance 2-417 requires: "Prior annexation of an unincorporated azea, the coundl shall request and receive a recommendation from the Planning and Zoning Commission on the proposed annexation and the proposed zoning for annexed azea. The Commission, the City, the applicant, and the Council shall follow the notice of hearing procedures provided in section 2-416." Meridian Ordinance 2- 416 contains Meridian's procedures for rezone applications. _ Clearly, the application for annexation and accompanying request for zoning or rezoning changes the current zoning from Rural Transitional to Light Industrial. RESPONDENT'S BRIEF - 9 .This sure sounds like a rezone. However, Petitioner argues that the requirement for a Development Agreement is unconstitutional since the word "rezone" was not used in the Findings of Fact and Conclusions of Law. The fact of the matter is that the- zoning for the property in question's zoning was changed from Rural Transitional to Light Industrial. Whether this is a new zone or rezone, the requested procedure is the same. Idaho Code § 67-6511(a) allows the City, by ordinance or otherwise, to require as a condition for rezoning that the owner or developer enter into a development agreement- Petitioner cites Idaho case law that supports the general tenant that in construing statutes words will be given their plain, usual, and ordinary meaning. The plain ordinary meaning of rezone is to change the zone. The City's zoning ordinance is not in direct conflict with Idaho Code § 67- 6511(a),: but rather, comports with the plain meaning of the word rezoning. RFAIt YARD SET-BACI~.S The Findings of Facts indicate that any contractor's yards proposed must be located a minimum of three hundred feet (300') from any residence except for an owner's residence... -Since this land was zoned (rezoned) to Light Industrial, a contractor's yard is a permitted use. Meridian City Code § 2-413(6a) requires contractor's yards to be located a minimum distance of three hundred feet (300') from any residence except for an owner's residence. This requirement is by City RESPONDENT'S BRIEF - 10 Code.. It does not need to be set forth in the Development Agreement. Meridian's Ordinance created the Light Industrial zoning (Found A and Z, pp. 222-228). Light Industrial zoning is then governed by permitted uses found in the land schedule table found in Meridian City Code § 2-409: Meridian City Code .§ 2-413, entitled Provisions for Unique Land Uses, then sets forth the three hundred foot (300') set- backs for contractor's yazds found in § 2-413(6). It is not necessary to have a redundant reference in the development agreement, since it is already set forth in the City Code. The Development Agreement speaks to minimum yard set-backs. Without the Development Agreement; minimum yazd set-backs for Light Industrial are thirty-five feet (35') on the front, zero (0) on the reaz (0) on the interior side, and thirty feet (30') on the street side. (See Zoning Schedule ~ 2-410) The Development Agreement is more restrictive than the City Code and requires a forty foot (40') set- back on the reaz yazd (the City Code requires zero (0) set-back). The specific language found in the Development Agreement states "shall have a minimum rear yard set-back of forty Feet. All other set-backs shall be as required by the Zoning and Development Ordinance." (See p. 4, Exhibit "B" of DevelopmentAgreement). According to the more restrictive Development Agreement, the minimum is forty feet (40'), not zero as set forth in City Code § 2-410. All other set-backs shall be as required by the zoning ordinance... This means that the set-back is a minimum of forty feet (40') and other set-backs such as that for a contractor's yazd aze in accordance to the City RESPONDENT'S BRIEF - 11 Code, which is three hundred feet (300') PLANTING STRIP Meridian City Code § 9-605(g)(1) provides: "Planting strips shall be required to be placed next to incompatible features such as highways, railroads, commerdal and industrial uses to screen the view from residential properties. Such screening shall be a minimum of twenty feet wide and shall not be part of the normal street, right-of--way, or utility easement."" Meridian City Code 9-607(1)(1) provides: "Buffering and screening. Whan commercial structures or uses in PD-C abut a residential use, site restricting screening or buffering shall be provided. In no event shall any structure in a PD-C be located nearer than twenty feet to the residential use •••" Recall that the Development Agreement requires a forty foot set-back and a twenty feet of it must be landscaped. Thus we have forty feet to deal with. Petitioners' concern of twenty feet landscaping and a ten foot utility easement is without merit, given the forty foot set-back. The preliminary plat sets forth a twenty foot easement and twelve foot utility easement, for a total of thirty-two feet of the forty foot set-back. In fact, although the Development Agreement does not spedfically state that the twenty feet planting easement excludes the Idaho Power utilities, when all are read together (the forty foot set-bac1G the twelve foot utility RESPONDENT'S BRIEF - 12 easement, and the twenty foot planting easement), the azgument is nothing more than form over substance. ACTUAL ANNEXATION AND ZONING Petitioner's final azgument is that the actual annexation, zoning of the property, and approving the Development Agreement fails to safeguard the health, welfare, and safety of the Petitioner, and has violated the City's Comprehensive Plan and Ordinances. Petitioner discusses in his final azgument how the City acted arbitrarily, capriciously, and abused their discretion in azmexing and zoning the land, and entering into the Development Agreement. Remember the annexation and zoning took place more than sixty days before the Petitioner filed his Complaint. "It is undisputed that the development at issue has a direct impact upon the Petitioners and their property and substantially prejudices their right by diversely affecting their quality of life property values." (Petitioners brief p. 21) Petitioner attacks the City's decision to annex and zone the property and attempts to save his non-compliance with the statute of limitations by attacking the Development Agreement. His attack is untimely and does not satisfy his burden of proving that Meridian's actions were an abuse of discretion. HAZARDOUS MATERIALS Again, Petitioner requests that the Development Agreement reiterate the City Code requirement regarding hazardous materials on lands zoned Light Industrial. RESPONDENT'S BRIEF - 13 This type of redundancy is unnecessary. POTABLE WATER SUPPLY Again, Petitioner challenges the City's annexation and zoning some sixty days after the final approval and ordinance was entered. The challenge is untimely. If made timely, the Petitioner is asking this-court to reweigh the facts (although some aze conflicting) and rule in Petitioner's favor rather than uphold the City's findings. As the Petitioner points out, the City was faced with two conflicting testimonies concerning water run-off. The City has accepted the developer's representative concerning the nm-off. Absent of abuse of discretion, the City's findings should be upheld. The Petitioner has made no showing that the City has abused its discretion in its findings of facts concerning water run-off and potable water. CONCLUSION In summary, the City of Meridian requests this Court to dismiss Petitioner's Complaint in its entirety and awazd costs and attorney's fees to the City of Meridian. DATED this ~~day of May, 1999. WHITE, PETERSON, PRUSS, MORROW, Si GIGRAY, P.A. Christopher S. Nye, Attorneys for Respondent RESPONDENT'S BRIEF - 14 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a true and correct copy of the above and foregoing~document was served by US mail, postage prepaid,.upon the following: A. ~. $ohner P. O. Box 1069 Boise, Idaho 83.701 Dated this~~y of 1`1 a.~^ , 1999. Christopher S. Nye Z:\Wo+k~J~IV~teridianv WitheaD 15332\BrieEwpd RESPONDENT'S BRIEF - 15 ~~~~~~D Ir-~=, ',~.,. o [J ~ ~ ~ JUL 1 9 1999 ,I IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DIST THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA WITHERELL et al. ~ L~LC~'(''~PT1 Petitioners, ) case No. CVOC9704203D J~L 2 0 199911 Vs. ) '::`itgofMerir7ian .,ii,! ~%lerls Jffice CITY OF MERIDIAN, et al. Respondents. PETITIONERS' REPLY BRIEF A. J. Bohner BOHNER CHASAN & WALTON, L.L.C. 1459 Tyre11 Lane P.O.'Box 1069-- Boise, Idaho 83701 Attorneys ,for Petitioners William F. Gigray III Christopher. S."Nye White, Peterson, Pruss, Morrow & Gigray, P.A. P.O.-Box 1150 Meridian,-Idaho 83680 Attorneys for Respondents IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA WITHERELL et al. Petitioners, ) vs. ~ CITY OF MERIDIAN, et al.: Respondents. Case No. CVOC9704203D PETITIONERS' REPLY BRIEF A. J. Bohner BOHNER CHASAN & WALTON, L.L.C. 1459 Tyrell Lane p.O. Box 1069 Boise, Idaho 83701 Attorneys for_Petitioners William F. Gigray III Christopher S. Nye White, Peterson,- Pruss, Morrow & Gigray, P.A. P.O. Box 1150 Meridian, Idaho 83680 Attorneys for Respondents ARGUMENT Tp,BLE OF CONTENTS IME.. 1. THE PETITION FOR JUDICIAL REVIEW WAS T -- - 2. A ZONING DECISION IS FUNDAMENTALLY DIFFERENT FROM.A . 7 REZONING DECISION 3. THE CITY FAILED TO•ADDRESS PETITCONFLICTS~WITHNTHEHCITYHE DEVELOPMENT AGREEMENT .VIOLATES AND THE APPLICATION OF CONDITIONAL USESMTORLIMITEDYPORTIONSTOFG ITS COMPREHENSIVEEPCLANYAND TSEORDINANCESCBYCFAILING TO LAWS REQUIRE THAT ALL LOTS WITHIN THE SUBDIVISION`Gp THROUGH.THE9 CONDITIONAL USE PROCESS. 4, BY ANNEXING, ZONING THE PROPERTY AND APPROVING THE DEVELOPMENT AGREEMENT RESPONDENTS FAILED TO SAFEGUARD THE V pLLATEDWTHEACITY'S COMPREHENSIVEIPILAN AND O INANCESTIN~10 TAKING THOSE ACTIONS '- 11 CONCLUSION 11 CERTIFICATE OF SERVICE •- ~ • i Cases: Soloaga v. Bannock County, 119 Idaho.678: 809 P.2d.1157 (Ct.App•5 1990) Statutes and Rules: 1, 5-8 Idaho Code § 67-6511A _ 1 ~ • 2 , 5, 6 , 8 Meridian Zoning Ordinance 11-2-417D ii AgQIIME2IT 1. THE PETITION FOR JUDICIAL REVD WAS TIMELY. The City's main argument on appeal is that the Petition for Judicial Review is untimely. Respondent's Brief, p. 5-7, 13-14. This argument is without merit The City apparently misread or misconstrued Petitioners' argument because it asserts that "Petitioners' first argument is that the zoning ordinance was unconstitutional. The ordinance in question was passed on April 222-228). (emphasis original). 15, 1997. (See A and Z pp• ~~ Respondent's Brief, p. 5• Respondent is referring to Meridian Ordinance No. 755 which annexed the property at issue. Petitioner did not argue that ordinance was unconstitutional. Petitioner argued that Meridian Zoning Ordinance i1-2-417D, the ordinance the .City relied upon as authority for entering intoythe development agreement, is unconstituLiona~ L=~~~--- -- with I.C. $ 67-6511A. Ordinance No. 755, Section 2, Part d. specifically states that "as a condition of annexation, the Applicant-shall enter into a development agreement as authorised by i1-2-416 L sad 11-2-417: D.1 •" (emphasis added). Annexation and Zoning,'p. 224. See also, City's Conclusion of Law that the condition of annexation and zoning was dependent on Applicant entering into a development agreement as authorized by 11-2-116 L and 1i-2-417 D. Annexation and Zoning, p. 208. The City's 1Meridian Zoning Ordinance 11-2-416 L is inapplicable to this case because it addresses situations where property is "rezoned", not the situation herein. See Petitioners' Initial Brief, p. 7 and discussion below. 1 1 ,.; statute of limitations argument rebuts an argument Petitioner did not make. The City's argument is nothing more than the .creation of a statute of limitations argument where none exists. The Court should reject that argument outright. Assuming arguendo that Petitioners' challenge of Meridian Zoning Ordinance 11-2-417 D;necessarily encompasses a challenge of Ordinance No. 755 because that ordinance (755) required the development .agreement under_,the authority of 11-2-417 b, the - City's argument is still without merit. The City argues that adoption of Ordinance No. 755 on April 15, 1997 is the final decision which began the time running for Petitioners' opportunity to challenge that decision. The record supports the conclusion that .the City is wrong on this point. The pertinent facts regarding the course of proceedings in this matter are undisputed. On April 1, 1997, the_City Council approved amended Findings of Fact and Conclusions of Law. Tr., p. 156,.ZL. 17 through p. 157, LL. 6. The Council decided to annex the property and zone it light industrial capable of development as allowed by the amended Findings of Fact and Conclusions of Law. The Council also voted to have an ordinance for annexation prepared. Tr.,,p• 157, LL. 7 through p. 158, LL. 11. The public hearing on the preliminary plat was continued until April 15, 1997. Tr., p. 161, LL. 8-24. On April 15, 1997, the Council approved the preliminary plat subject to all staff and ACRD conditions and subject also to the successful completion 2 of the CC&Rs and the development agreement. through p. 191, LL. 10. Tr., p. 188, LL. 10 On April 15, 1997, the City passed Ordinance No. 755 relating to the subject property. Annexation and Zoning, p. 226. That ordinance stated in pertinent part, Section 1. .that the annexation and coning is subject to the conditions referenced is the Findings of Fact and Conclusions of Law as adopted by the Meridian Council on the request for annexation and zoning Section 2. That the property shall be subject to de- annexation if the owner shall not meet the following requirements:. d. That, as a`condition of annesatioa the.A licant shall enter into a development aareement as authorised by 11-2-416 L and ii-2-417 D; h. Meet the requirements and conditions of the Findings of Fact and Conclusions of Law, and meet the Ordinances of the City of Meridian. (emphasis added). Annexation and Zoning, p.~223-224. The City's Findings of Fact and Conclusions of Law stated in pertinent part, 16.- As a condition of annesatioa and the zoning of (I- L) Light Industrial, the Applicants-shall be required to enter into a development aareement as authorized by 11-2-416 L and 11-2-417 D; that the development agreement shall address, among ;other things, the following: . 17. It is concluded, however,-that it is more _ ___.__-__a ~..~enmont tObe BIItered therefore as a of annesatioa approval. ....(emphasis added). Annexation and Zoning, p. 208-210. It was not until July 1, 1997 that the City Council approved the final plat and the development agreement for the property at issue. Tr., p. 203, LL. 19 through p. 204, LL. 9. Within 3 twenty-eight days of that final decision, Petitioners' filed their complaint seeking judicial review. Preliminary Plat/Final Plat, p. 36. It is clear from Ordinance No. 755 and the City's Findings of Fact and Conclusions of Law that annexation and zoning of the property was expressly made contingent upon a development agreement-being entered into by the developer/Applicant. Applicant could not move forward with development until the City approved a development agreement. Failure to have a development. agreement approved mandated de-annexation of the property pursuant to both Ordinance No. 755 and the City's Findings of Fact and Conclusions of Law. Annexation and Zoning, p. 210-213; ..224. Petitioners challenge the development agreement in this case for a number of different reasons, including the fact that the City approved .that agreement pursuant to an unconstitutional zoning ordinance, i1-2-417 D. Petitioners' Initial Brief, p• 6- 27. However, it was not-until the City actually approved the .development agreement at issue that Petitioners had a.final decision which was ripe for challenge. Only after a final decision on the terms of the development agreement had been made could Petitioners' challenge the authority by which that agreement had been adopted and terms of the development agreement. Any challenge prior to that time, as to Ordinance Nos. 755, 1i-2-417D or otherwise; would have been premature. 4 As stated in Soloaga v. Bannock County, 119 Idaho 678, 681,' gp9 P.2d 1157 (Ct.App. 1990), "the final decision' is a condition which must occur before the limitation period will -being to operate." The City argues that Petitioners' arguments do not center on the actual development agreement, but upon the ordinance that requires the development agreement as a condition of annexation.. Petitioners challenge both the Zoning Ordinance upon which the City relies as authority for adoption of the development agreement (11-2-417 D) and also challenges the terms of the development agreement itself. The City fails to recognize that Petitioners were precluded from bringing any of their- arguments regarding the ordinance and the development agreement until the City,had approved the development agreement on July 1, 1997. Petitioners could not seek judicial review immediately after the City. had approyed Ordinance.No. 755 on the grounds it was invalid because it-relied upon Ordinance 11-2-417 D to require a development agreement and Ordinance 11-2-417 D unconstitutionally conflicted with I.C. I.C. S 67-6511A because the City would have correctly replied that Petitioners' challenge was premature. Such a challenge would have been premature because the City had not entered into a development agreement pursuant to that ordinance. In other words, there was nothing to challenge. Actual adoption of the development agreement was the crucial step which was required, pursuant to the ordinance (either 755 or 11- 5 ' ~ contention ,;that the ordinancek~is to make Petitioners ,, .- ` 2. ,417~D).~h ., • , unconstitutional •ripe ,for review , ,,. , r~ ~ ~_ T ~>~ ~~ ' ' a roved the development. Cit had ,never finally t., PP, _,_ .",~_.: If the, y- e licitly sti 5,; ~.,,~ , which XP ' ursuant to~the ordinance No 755 agreement p *.,, , .y, ;. f .,~--- i= ` ~ :usticiable :-~~ ~ 'there would have been no ] relied upon it ~ 2 417 D, <, ~r,.,"=,3, " e ~` No harm Y,,. controversy regarding the o'rdinance's constitutionality ,+. ~•` 'licant would ..;~ ,, would have resulted to Petitioners because the Pyrt }i `, „, •' r' x ` ` ~ `development of the °._ ~a i_~! ;! ~' ~ roceed With anY not have been allowed to p `~'`~ ~ sothetical situation, Petitioners bpropertyLwhatsoever. In that hYP ,: 17= ,. ,, : r ,, ' ' °~ ` ~ ". ,_.,, , ,,;, '" ' or •prejudice and would would'be unable to demonstrate any harm i not have~had standing to raise the issue'of~the uncon§titutional 's ordinance 11-2 417 D and I C: § 67- e., , conflict~ between theCity •'` E y ,. _ 6511A ,,-, '~ ~`' ent fails to ," "~~' The City's statute oflimitations argum ` „ ' ~ finalapproval of the , recognize that it was the {City's ,. ~_ 'ht to seek ,;,, t,, .s.. "' eyed Petitioners' rig development agreement which trigg `'~"~~ of"ordinance li-2-417 "D t .,a_ _~ judicial review on the constitutionality •. 'went E9 ~. !-ors.',. , . -.. - - ~_ ~ , : , as well as on ,the other deficiencies in the dement of the ,,.u ~ "'' Ito the develop vagreement ~EVerYthing relating ,,, ~• ="• ` ~ 's Findings of ~Fact'and'~ ~ z a_illt z~r. '' "" the ordinance and the City ~ ,. property ~ ~ ~-„ ,,. Conclusions of Law -related to and indeed were contingent upon L. t ~,iS3- -..r - .- --,~,;. +.+ ~ :'= _ ~~ ` ' ~ - ~ment~agreement 'Until that the adoption of the develop fSnent went forward and .. .., development agreement was adopted no'deve op _ e.;_'It is' '° '6` udicial review was not rip .Petitioners' petition for j uted did not make a final decision on the ` that the City undisp , ,_ .. ordinances,. ii-2-416 L and 11-2-417 D, one providing for development agreements when property is "zoned" and one providing for development agreement when property is "rezoned" is essentially an admission by the City that it recognizes that there does exist a fundamental difference between property that is zoned and property that is rezoned. gy its plain terms, I.C. S 67-6511A permits the City Council to enter into a development agreement with a owner or developer only as a condition of "rezoning." No "rezoning" occurred in this case. The City relied on Meridian Zoning Ordinance 11-2- 417D to justify its action in entering into the development agreement, but that ordinance is unconstitutional because it conflicts with I.C. § 67-6511A. See Petitioners' Initial Brief, p: 6-10. The City's zoning ordinance 11-2-417D is unconstitutional and the development agreement entered into in this case is improper and void as a matter of law because it was entered into on the authority of that unconstitutional ordinance. The City exceeded its statutory. authority by relying on an unconstitutional zoning ordinance in entering into the instant development agreement. This Court should reverse the. City Council's decision and declare the development agreement null and void. The City specifically conditioned. annexation on the developer entering into a development agreement. C.R., Annexation & Zoning, p. 208. The City specifically stated that S i if the conditions set forth in its Conclusions of Law, which included entering into the development agreement, are not met, "the property shall not be annexed or if already aanesed, it shall be de-annexed." C.R., Annexation & Zoning, p• Z11• Both parties to this application, the Applicant and the City contemplated the possibility of de-annexation of the property. The lack of a valid development agreement mandates de-annexation of the property. The Court should remand the matter to the City with instructions to de-annex the property.- _____,...n,~,c ~ auriiMENT COMPREririrvaivn rte..... -- - ----- RE UIRE THAT ALL'LOTS'WITHIN THE S THE CONDITIONAL USE PROCESS. Petitioners asserted in their Initial Brief that even if this Court finds that the development agreement was not entered into pursuant to an unconstitutional zoning ordinance, it should still reverse the City's decision and remand for revision of the development agreementz: Petitioners .argue on appeal that the development agreement violates and conflicts with the city council's annexation ordinance by impermissibly restricting the application of conditional uses to limited portions of the ZAssuming aryuendo that the Court held th t arhqument has no statute of limitations argument had merit, application to Petitioners' challenge of the terms of t e Petitioners would be development agreement. Were it otee hesterms of that agreement, denied any opportunity to challeng ht to due process. a denial of their constitutional rig 9 property. Petitioners also argue on appeal that the city violated its own conclusions of law, its comprehensive plan and its ordinances by failing to require that all lots within the subdivision go through the conditional use process. See Petitioners' Initial Brief, p. 10-16. The City has failed to address those arguments in any way. This failure to address .Petitioners' position on the necessity of imposing the conditional use process on all of the lots within the subdivision is an implicit admission that Petitioners are correct on this issue. The Court should reverse the City's decision and remand with instructions that all lots within the subdivision must go through the conditional use process. ------., m„L. TAKING THOSE' Al:'l1~ir°. The City's only response to Petitioners' argument on this point is its reliance on its statute of limitations argument. As discussed above, the City's defense based on the statute of limitations is without merit. The development agreement fails to protect the health, welfare and safety of the adjoining residential lot owners and thereby fails to promote the goals of the City's Comprehensive Plan. See Petitioner's Initial Brief, p. 19-27. The value of Petitioners' property has been and will be severely diminished by Respondents' actions in approving the development which is in violation of the City's ordinances, the 10 City's Comprehensive Plan and its Findings of Fact and' Conclusions of Law. The Respondents' actions have failed to safeguard the health, welfare and safety of Petitioners as required by law.. This Court should reverse the City Council's decision in this matter. CONCLIISION For all the foregoing reasons, Petitioners respectfully request that the Court grant Petitioners all of the relief requested in its Initial Brief. DATED this 12th day of July, 1999. BOHNER, CHASAN & WALTON, L.L.C. /~ !~ By J. Bohner ornev for Petitioners CERTIFICATE OF SERVICE - I HEREBY CERTIFY-that on the 12°h day of .July, 1999 a true and correct copy of the within and foregoing document was served upon: William F. Gigray III Christopher 5. Nye White, Peterson et al. P.O. Box 1150 Meridian, Idaho 83680 by U.S. mail by hand delivery by facsimile by overnight mail J. Bohner 11 JUSTIN P. AVLSWORTH JOLIE RLEIN FISCHER WM. F. GIGRAV, III D. SAMUEL JOHNSON WILLIAM A. MORROW CHRISTOPHER S. NYE PHILIP A. PETERSON STEPHEN L. PPUSS ERIC S. ROSSMAN TODD A. ROSSMAN R. STEPHEN RUTHERPORD TERRENCR R. WHITE Angel Sims, Deputy City Clerk City of Meridian 33 E Idaho Meridian ID 83642 WHITE, PETERSON, PRUSS, MORROW & GIGRAY, P.A. ATTORNEYS AT LAW 200 EAST CARLTON AVENUE, SUITE JI POST OFFICE BOX 1150 MERIDIAN, IDAHO 83680.1150 TEL (208) 288-2499 FAX (208) 288-2501 Email via IHlemd: wfg(r~wppmg.com July 19, 1999 NAMPA OFFICE 104 NINTH AVENUE SOUTH POST OFPICE BOX 247 NAMPA, IDAHO 93653.0247 TEL (208) 466.9272 FAX (209) 466-4405 PLEASE REPLY TO MERIDIAN OFFICE ~,.1-l ''~~111 .it~~ 2 0 1999 City of 1FFeridierx City Clerl:Office Re: Wetherell v City of Meridian Dear Angel: You will recall that John Barnes applied to the City of Meridian to have his property annexed back in 1997. The City held several lengthy hearings and eventually entered a Findings of Fact and Conclusions of Law allowing the annexation and adopted an ordinance finalizing the annexation and requiring the developer to enter into a Development Agreement. The Findings of Fact and Conclusions of Law were quite clear on what the Development Agreement was supposed to contain. Unfortunately, the Development Agreement was not entered into until the end of August 1997, some 4 months after the ordinance was adopted. In any event, Wetherell has filed an appeal (judicial review). A judicial review is simply an appeal taken to the District Court in Ada County. The District Judge reviews the agency record and determines whether the agency (Meridian) made any mistakes. Both sides have briefed the issues. I won't go through all the legal arguments each side has made. However, I do find one item that might be troublesome: Paragraph 13, page 27 of the Findings of Fact and Conclusions of Law require that all lots within the annexed land that lie back to back to the neighboring subdivision require a conditional use permit for any use. In other words, any development on the lots that lie back to back with the neighboring subdivision (on Locust Grove) can only be developed using the conditional use process. Mayor Robert Come July 19, 1999 Page 2 The map shows that these lots are delineated as Lot Nos. 3-10. The Development Agreement (p.2, para. 2c) states that the developer must apply for a conditional use permit only for Lots 6, 7, 8 and 9. Left out are Lots 3, 4 and 5. I think this is a simple oversight but it is probably enough for the District Court Judge to remand the case back for the creation of a new Development Agreement. I have also attached a Notice of Hearing on the Request for Oral Argument on Appeal which sets the hearing for 2:30 p.m. September 1, 1999. If you have any questions, give me a call. Sincerely, Christopher S. Nye Enclosure: Reply Brief, Response Brief, Original Brief ey/Z:\Work\M\Mcridian v Witherell 15332\C1tJu116.1tr