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Z - Request for Reconsideration - Applicant Response 601 W. Bannock Street PO Box 2720 Boise, ID 83701 Telephone: 208-388-1200 Facsimile: 208-388-1300 www.givenspursley.com Gary G. Allen Christopher J. Beeson Jason J. Blakley Clint R. Bolinder Jeff W. Bower Preston N. Carter Jeremy C. Chou William C. Cole Michael C. Creamer Amber N. Dina Bradley J. Dixon Thomas E. Dvorak Jeffrey C. Fereday Martin C. Hendrickson Brian J. Holleran Kersti H. Kennedy Neal A. Koskella Debora K. Kristensen Michael P. Lawrence Franklin G. Lee David R. Lombardi Kimberly D. Maloney Kenneth R. McClure Kelly Greene McConnell Alex P. McLaughlin Melodie A. McQuade Christopher H. Meyer L. Edward Miller Patrick J. Miller Judson B. Montgomery Emily G. Mueller Deborah E. Nelson W. Hugh O’Riordan, LL.M. Randall A. Peterman Jack W. Relf Michael O. Roe Jamie Caplan Smith P. Mark Thompson Jeffrey A. Warr Robert B. White Kenneth L. Pursley (1940-2015) James A. McClure (1924-2011) Raymond D. Givens (1917-2008) Gary G. Allen garyallen@givenspursley.com December 6, 2018 VIA EMAIL TO CITY CLERK City of Meridian Mayor and City Council Members 33 East Broadway Avenue Suite 300 Meridian, ID 83642 Re: H-2018-0075 Applicant Response to Request for Reconsideration Dear Mayor and Council Members: Joint School District No. 2 (“School District”) provides this response in opposition to the Request for Reconsideration submitted November 26, 2018, by Mr. Hethe Clark on behalf of Woodside Avenue Investors, LLC (“Woodside”). Woodside’s Request for Reconsideration only addresses condition of approval 1.1.8 (“Condition 1.1.8”), which requires the School District construct a local street from the mid-mile collector east to the Flowers’ property. For the reasons stated below, the Request for Reconsideration should be denied. I. The Request for Reconsideration does not identify any deficiency in the Council’s Decision. The Meridian City Code sets forth reconsideration standards that “must be strictly followed.” See generally M.C.C. § 1-7-10(A)(1)-(9). One of the City’s reconsideration standards requires that a “request [for reconsideration] must identify specific deficiencies in the decision for which reconsideration in sought.” M.C.C. § 1-7-10(A)(3). Woodside’s Request for Reconsideration does not identify any specific deficiency in the Council’s well-reasoned and properly issued Findings of Fact, Conclusions of Law and Decision and Order (“Decision”). The Request for Reconsideration merely asks the Council to reweigh December 6, 2018 Page 2 policy arguments Woodside previously made hoping for a different outcome. For this reason, the Request for Reconsideration cannot be granted under the City’s standards. II. Woodside’s property is not landlocked; the Owyhee High School will not landlock Woodside’s Property; and the School District is working diligently with the Flowers on an easement for Woodside. Woodside’s property has access via McDermott Road and Ustick Road. The property is not landlocked. Construction of Owyhee High School will not affect the accessibility of Woodside’s property via McDermott Road or Ustick Road. If SH 16 is funded, and if SH 16 is constructed through Woodside’s property, the Idaho Transportation Department will maintain access to Woodside’s property through construction of local streets. In concert with the recommendation of ACHD, the Council imposed a condition on the School District to give Woodside a right of way easement though the future residential portion of the School District’s property. ACHD was not supportive of splitting or impacting the school’s campus to provide access to the Woodside property. Immediately following the October 23rd hearing where H-2018-0075 was approved, the School District began communicating with the Flowers to secure an easement over the Flowers’ parcel for the benefit of Woodside. III. Councilmember Borton’s motion was clear, and Condition 1.1.8 is consistent with the motion and the Council’s action approving the motion. At the October 23rd hearing, the School District’s representative was clear–Condition 1.1.8 required the School District to construct a local street up to the Flowers’ parcel.1 In several instances, the Council asked for clarification about the location and orientation of the local street.2 After closing the public hearing, Councilmember Borton moved to approve H-2018-0075, with the proposed conditions of approval, including Condition 1.1.8 as modified at the hearing.3 Councilmember Bernt asked for clarification on how Councilmember Borton’s motion addressed access to Woodside’s property.4 In response, Councilmember Borton stated: “Section 1.1.8 … that would remain but be modified to capture the school district’s concession … to include provisions for a public roadway easement and future dedication along their own parcel connecting to the east. It does not address the Flowers’ parcel.”5 1 October 23rd Hearing Video at 1:55:57 (Mr. Gary Allen: “As the staff mentioned, the school district is now going to complete a local road over to the edge of the Flowers’ parcel.”). 2 See e.g. October 23rd Hearing Video at 2:00:02, 2:22:47, 2:56:55. 3 October 23rd Hearing Video at 3:04:40. 4 October 23rd Hearing Video at 3:05:45. 5 October 23rd Hearing Video at 3:05:55. December 6, 2018 Page 3 City Attorney Nary also asked Councilmember Borton for clarification on access to Woodside’s property.6 Councilmember Borton clarified that his motion and Condition 1.1.8 would only require extension of the local road to the Flowers’ parcel.7 Deliberation ensued, which primarily addressed the local street orientation and Condition 1.1.8. Before taking a vote, Mayor De Weerd clarified, “[w]e do have a motion on the table, to vote on, that approves this application with the road stopping at the district property line.”8 Ultimately, the Clerk called the roll, and Councilmember Borton’s motion passed, three in favor and two opposed. IV. Conclusion. The School District requests the Council deny Woodside’s Request for Reconsideration. Woodside had a full and fair opportunity to participate and made its concerns very clear throughout the Council’s consideration of H-2018-0075. Woodside provided oral and written comments and had legal counsel appear on its behalf. Now Woodside is simply asking for a second bite at the apple. That is not the purpose of the City’s reconsideration procedure. The Decision has no deficiencies, and Woodside has failed to articulate any deficiencies. Accordingly, reconsideration is not proper. Thank you for your consideration of this response. Sincerely, For Gary G. Allen cc: Bill Nary (bnary@meridiancity.org) Hethe Clark (hclark@spinkbutler.com) Geoffrey Wardle (GWardle@spinkbutler.com) 14447152_3.docx [14408-2] 6 October 23rd Hearing Video at 3:06:30. 7 October 23rd Hearing Video at 3:06:50. 8 October 23rd Hearing Video at 3:14:10 (emphasis added). 1 C.Jay Coles From:Jeffrey W. Bower <jeffbower@givenspursley.com> Sent:Monday, December 10, 2018 8:22 PM To:C.Jay Coles; Hethe Clark; Stacy Wardein Cc:Bill Nary; Geoffrey M. Wardle; Gary G Allen Subject:RE: H-2018-0075 - Applicant Response to Request for Reconsideration (14408-2) [IWOV-GPDMS.FID849294] Mr. Coles: The Applicant provides the following reply. Please enter this into the record in the above matter. As stated in the School District’s December 6 th response, M.C.C. § 1-7-10(A)(3) requires a specific deficiency be articulated in support of reconsideration. Woodside’s opinion that Condition 1.1.8 is an “incomplete solution” is not a deficiency in the decision that can support reconsideration. Additionally, Idaho Code § 67- 6535 only requires decisions on land use matters be adequately reflected in a reasoned written decision. Woodside has not raised any claim that the Council’s written Decision is inadequate; therefore, Idaho Code § 67-6535 is not at issue. Lastly, the City’s reconsideration provisions prohibit additional evidence on reconsideration. See M.C.C. § 1-7-10(A)(6) (“No additional evidence or testimony will be allowed at the City Council meeting.”). Accordingly, the additional evidence included in Mr. Clark’s December 10 th email may not be considered under the City’s standards. Thank you, Jeff Jeff Bower GIVENS PURSLEY LLP 601 W Bannock St, Boise, ID 83702 main 208-388-1200 direct 208-388-1260 fax 208-388-1300 jeffbower@givenspursley.com www.givenspursley.com From: C.Jay Coles <cjcoles@meridiancity.org> Sent: Monday, December 10, 2018 4:14 PM To: Hethe Clark <hclark@spinkbutler.com>; Stacy Wardein <stacywardein@givenspursley.com> Cc: Bill Nary <bnary@meridiancity.org>; Geoffrey M. Wardle <GWardle@spinkbutler.com>; Jeffrey W. Bower <jeffbower@givenspursley.com>; Gary G Allen <GaryAllen@givenspursley.com> Subject: RE: H-2018-0075 - Applicant Response to Request for Reconsideration (14408-2) [IWOV- GPDMS.FID849294] This will be entered. Thanks, C.Jay Coles City Clerk | City of Meridian 33 E. Broadway Ave., Meridian, Idaho 83642 Phone: 208.888.4433|Email: cjcoles@meridiancity.org 2 Built for Business, Designed for Living All e-mail messages sent to or received by City of Meridian e-mail accounts are subject to the Idaho law, in regards to both release and retention, and may be released upon request, unless exempt from disclosure by law. From: Hethe Clark [ mailto:hclark@spinkbutler.com ] Sent: Monday, December 10, 2018 3:50 PM To: C.Jay Coles < cjcoles@meridiancity.org >; Stacy Wardein < stacywardein@givenspursley.com > Cc: Bill Nary < bnary@meridiancity.org >; Geoffrey M. Wardle < GWardle@spinkbutler.com >; Jeffrey W. Bower <jeffbower@givenspursley.com >; Gary G Allen < GaryAllen@givenspursley.com > Subject: RE: H-2018-0075 - Applicant Response to Request for Reconsideration (14408-2) [IWOV- GPDMS.FID849294] Mr. Coles: In response to the below-mentioned letter from counsel for West Ada School District, we’d ask that the following points be submitted to the Council for their review prior to tomorrow’s meeting: 1. Our request for reconsideration is made both on Idaho Code 67-6535 and Meridian City Code 1-7-10. As discussed in our letter, the deficiency in this case is a condition that is an incomplete solution. It places the burden on Woodside Avenue Investors, LLC / Boise Hunter Homes (BHH) to solve a problem that is not of its making and threatens to landlock BHH’s property. 2. ITD representatives met with BHH last week and informed BHH that its access will be negatively affected with the SH16 construction. The impact of loss of access by the actions of ITD, the City of Meridian, and WASD has not been adequately considered by any of the involved agencies, including ACHD. The issue is certainly not resolved with this condition. 3. BHH has reached out to Flowers and attempted to buy the piece of property in question at a price of $141,000 per acre. During an in-person conversation late last week, the offer was rejected with no counter-offer. We understand Mr. Flowers believes he needs to be negotiating with WASD. WASD is supporting the current condition, which lets it off the hook. BHH meanwhile is left with a problem it cannot solve on its own. We are asking that the City Council resolve this matter by imposing the language identified by Staff at the November 6, 2018 hearing. Thank you. Hethe Clark 251 E Front Street, Suite 200 | PO Box 639 | Boise, Idaho 83701 hclark@spinkbutler.com | Direct 208.388.3327 | Fax 208.388.1001 From: C.Jay Coles [ mailto:cjcoles@meridiancity.org ] Sent: Thursday, December 06, 2018 2:16 PM To: Stacy Wardein Cc: Bill Nary; Hethe Clark; Geoffrey M. Wardle; Jeffrey W. Bower; Gary G Allen Subject: RE: H-2018-0075 - Applicant Response to Request for Reconsideration (14408-2) [IWOV- GPDMS.FID849294] This will be entered into the record. 3 Thanks, C.Jay Coles City Clerk | City of Meridian 33 E. Broadway Ave., Meridian, Idaho 83642 Phone: 208.888.4433|Email: cjcoles@meridiancity.org Built for Business, Designed for Living All e-mail messages sent to or received by City of Meridian e-mail accounts are subject to the Idaho law, in regards to both release and retention, and may be released upon request, unless exempt from disclosure by law. From: Stacy Wardein [ mailto:stacywardein@givenspursley.com ] Sent: Thursday, December 6, 2018 1:24 PM To: City Clerk < CityClerk@meridiancity.org > Cc: Bill Nary < bnary@meridiancity.org >; 'hclark@spinkbutler.com' < hclark@spinkbutler.com >; 'gwardle@spinkbutler.com' < gwardle@spinkbutler.com >; Jeffrey W. Bower < jeffbower@givenspursley.com >; Gary G Allen < GaryAllen@givenspursley.com > Subject: H-2018-0075 - Applicant Response to Request for Reconsideration (14408-2) [IWOV- GPDMS.FID849294] Good afternoon, Please ensure that the attached correspondence is delivered to the Mayor and City Council members. Thank you! Best, Stacy ______________________ Stacy Wardein, Legal Assistant GIVENS PURSLEY LLP 601 W Bannock St, Boise, ID 83702 direct 208-388-1249 fax 208-388-1300 stacywardein@givenspursley.com www.givenspursley.com ______________________ CONFIDENTIALITY NOTICE: This communication is confidential and may contain privileged information. 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