CC - Request for ReconsiderationREQUEST FOR RECONSIDERATION
To: Meridian City Council
From: Jim Jones, attorney for Elisabeth Songe (Appellant)
Re: Frazier Council Review (H-2020-0011), City of Meridian
The Appellant, Elisabeth Songe, acting through her attorney, Jim Jones, hereby
requests reconsideration of the City Council's decision of March 24, 2020, revoking
Appellant's Accessory Use Permit no. 2019-0388. The revocation was made in the
proceeding designated as Frazier Council Review (H-2020-0011) on the grounds that
Appellant had failed to hold a neighborhood meeting as required by Meridian Unified
Development Code section 11-4-3-9(A)(6). This request for reconsideration is made
pursuant to Meridian City Code section 1-7-10.
Prior to addressing the deficiencies in the revocation proceeding, some preliminary
comments may be appropriate. This attorney agreed this past weekend to represent
Appellant in all matters through the course of these proceedings. Due to the short time
frame for submitting this request, it was not possible to involve my law firm's secretarial
staff. Apologies are offered for the form of this document and the two supporting
declarations.
The grounds for seeking reconsideration are:
1. The record before the City Council on March 24 supported a finding that a
neighborhood meeting was held by Appellant on November 21, 2019, and the
complainant, Nicholas Frazier, had no basis to testify that the meeting did not
occur.
2. Mr. Frazier's appeal was tardy, if he is considered to be a party of record.
3. The notice of hearing for Mr. Frazier's appeal was deficient in providing notice to
Appellant that her childcare permit was in danger of being revoked.
Appellant's application file contains a copy of the neighborhood meeting notice, dated
November 7, 2019. It is attached to the Declaration of Jenny Hay as Exhibit B. It says a
neighborhood meeting was scheduled for 6:30 pm at the Songe home, 5343 N.
Maplestone Ave., on November 21, 2019. The file contains a blank sign-up sheet, with
the notation, "No attendance --spoke w/ some neighbors on street --didn't care to
attend/no concerns."
Granted, this is fairly slim evidence in the record as to the actual conduct of the
meeting. However, there is no competent evidence in the record that a meeting did not
take place. Mr. Frazier says he did not attend a meeting but he has established no basis
to certify that it did not happen.
The Declarations of Jenny Hay and Appellant show that there was planning for a
meeting, the Appellant was present at the time and place scheduled for the meeting and
that nobody came. Ms. Hay states in paragraph 2 of her Declaration that she contacted
the Meridian Planning staff on behalf of the Appellant on October 30, 2019, to request
the names and addresses of people who would need to be invited to the neighborhood
meeting. That email is the sixth page of Exhibit A to her Declaration. She received those
names and addresses from Kim Tabarini on November 7, 2019.
Ms. Hay states in paragraph 3 of her Declaration that she and Appellant prepared the
meeting notice on November 7 and that she personally mailed copies of the meeting
notice to all of the property owners named on the list she received from the
City --Nicholas Frazier, Roger Howell, Challenger Development, Inc., and Jump Creek
Subdivision HOA, Inc. Specifically, she placed a copy of the notice in envelopes
addressed to each owner and deposited the same, postage prepaid, in the U.S. mail on
November 7, 2019. It should be noted that both of the Declarations submitted in support
of the Request for Reconsideration are made under penalty of perjury under Idaho
Code section 9-1406.
As a general rule in Idaho, service of a document is presumed to have provided notice
to the addressee at the time it is mailed in the manner Ms. Hay did in this case.
Although this is not a court civil action, Rule 5(b)(2)(C) of the Idaho Rules of Civil
Procedure provides that when a document is served by mail the "service is complete
upon mailing." There is no specific comparable provision in the Meridian City Code, but
there are a number of provisions in the Code making the revocation of a permit
"effective immediately upon mailing" by the City. The notice sent to Appellant in this
proceeding contains that language.
Mr. Frazier apparently claims that he did not receive the meeting notice, but there is a
legal presumption that he did. Roger Howell, another landowner on the list provided by
the City, acknowledged that he "did receive the notice in the mail for the neighborhood
meeting." See, Hay Declaration, Paragraph 3 and Exhibit A, 8th page. As further
support that the notice was mailed, Ms. Hay states that she mentioned to the property
manager of Jump Creek Subdivision HOA on November 18 that the neighborhood
meeting was to take place on November 21. Hay Declaration, paragraph 3 and Exhibit
C, page 1.
Another thing to consider in this context is that Joseph Dodson, as the City's Associate
Planner, stated to the Mayor and Council in his Memorandum regarding Mr. Frazier's
appeal, that the Appellant had "submitted all required documentation to the Planning
Department." Elisabeth Songe certainly believed that she had done so.
With regard to the issue of whether Mr. Frazier's appeal was tardy, It would depend on
whether he was a party of record to the licensing proceeding. The Notice of Approval of
Appellant's application, dated January 2, 2020, states that an appeal of the licensing
decision must be filed by a "party of record" no later than January 17, 2020. Mr.
Frazier's appeal was filed 5 days later on January 22. He would be an interested party,
being within 100 feet of the Songe property, he was named on the list of property
owners provided to Appellant by the City and Ms. Hay testified that she mailed him a
meeting notice. That combination of factors could well qualify him as a party of record,
making his appeal tardy.
A more troubling factor is that the notice for the City Council's March 24 public hearing
on this matter did not advise Appellant that her childcare permit was in jeopardy,
depending on what occurred at the hearing. A fundamental concept of Constitutional
due process is that a person may not be deprived of a property interest without
reasonable notice and an opportunity for a hearing. The hearing is not the problem
here. The problem is that nothing in the hearing notice warned Appellant that her
childcare license was at risk. She so states in her Declaration.
The postcard notice, which is attached to Appellant's Declaration as Exhibit A, says the
hearing is "To Review Director's Approval of an Accessory Use for a Daycare,
Family(A-2019-0388)." There is nothing to indicate that a complaint had been lodged
against her license or that the license might be subject to revocation as a result of the
hearing. This is not intended as criticism of city staff because Ms. Hay and Appellant
have been very appreciative of their professionalism and courtesy. It is just that the
notice did not indicate what was at stake in the hearing. Elisabeth Songe is not
proficient in English so it was even more difficult for her to understand what was at
issue. She states in paragraph 3 of her Declaration that she was concerned about going
to a public meeting the night of March 24 since there were government orders to not
attend large meetings because of the disease. The City issued a social distancing order
on March 21 and the Governor had declared a state of emergency on March 13.
Nevertheless, Appellant states she would have attended the hearing if she had known
that her license was in danger.
Ms. Hay exercised reasonable diligence to ensure that Elisabeth followed all of the
requirements for obtaining the childcare license, including preparation for the
neighborhood meeting. Elisabeth and her husband were available at the time and place
set for the meeting but nobody came. Earnings from the childcare business were
one-half of the family income and those earnings allowed the family to purchase the
home. Elisabeth's husband has had his hours cut back because of the coronavirus
disease, which will make it difficult for the family to make their house payments.
For the foregoing reasons, it is respectfully requested that the Council grant
reconsideration in this matter and vacate the license revocation.
/s/ Jim Jones
Jim Jones, Bar Number 1136
Attorney for appellant Elisabeth Songe
800 West Main, Suite 1300
Boise, Idaho 83702
0imjjust27@gmail.com
(208)513-4185