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CC - Applicant's Request for Reconsideration Givens Pursley LLP GIVENS PURSLEYLLP Attorneys and Counselors at Law MEMORANDUM TO: Meridian City Clerk; City Attorney; Mayor and City Council FROM: Deborah Nelson, Givens Pursley LLP RE: Response to City Attorney Memorandum re: Cedarbrook Request for Reconsideration DATE: August 17, 2020 In his August 11, 2020 memorandum, City Attorney Bill Nary raised a concern as to whether the Request for Reconsideration for Cedarbrook Subdivision ("Request") was properly filed because it was not emailed directly from the applicant to the City Clerk. This memorandum responds to that concern, to show that the Request was properly filed based on the facts, applicable Code provisions, and the prior decision of this Council on the same facts and Code. UDC 1-7-10 requires a request for reconsideration to "be in writing and filed with the City Clerk within fourteen (14) days of the final approval." The Request was in writing and filed with the City Clerk before 5 P.M. on August 4, 2020, within 14 days of the Cedarbrook final approval. Based on these facts, the Request was properly filed in accordance with Code. There is no dispute the Request was timely delivered to the City Clerk. On August 4, 2020, this law office transmitted the Request via email to Sonya Allen, the planner assigned to the Cedarbrook matter. See Attachment A. Ms. Allen confirmed to this office that she received the Request and would send it to the City Clerk. See Attachment A. Prior to 5 P.M. on August 4, 2020, Ms. Allen forwarded the Request to the City Clerk. See Attachment B. The City Clerk timely received the Request and made it available for public viewing on the City's website by 7:15 AM the next morning. See Attachment C. The question raised by Mr. Nary is whether the Code requires a request for reconsideration to be delivered by the applicant directly to the City Clerk without an intervening party. UDC 1-7-10 does not require direct delivery from an applicant to the City Clerk. UDC 1-7-10 does not specify how a request for reconsideration must be filed with the City Clerk—whether by U.S. mail, in person, or electronic mail—or whether it may be forwarded by another party. The Code does not prohibit delivery by the forwarding of an email,just as it does not prohibit a City employee from receiving and delivering to the City Clerk a request hand delivered to the City in person. UDC 1-7-10 also does not require a request for reconsideration to be addressed to the City Clerk by name or title. Instead, it is common practice for a request for reconsideration to be addressed to the City Council, the decision makers on the request. The City Clerk's role is to "be the custodian of all public records, ordinances, resolutions and orders of the city council, and such other papers and documents as may be delivered into his or her custody" (UDC 1-8A-2.A.2 (emphasis added)), and to furnish those records to the Mayor and Council, and to the public upon request (UDC 1- 8A-2.0 and D). The City's planning department also plays a role in maintaining and transmitting to the Commission and Council "all materials and correspondence related to land use applications." UDC 11-5A-2 ("The Director with the City Clerk shall receive and examine applications including,but not limited to the following: ... b. Maintain records of all materials and correspondence related to land use applications; ... e. Transmit to the commission or Council all applications related to this title.") This Council recently received and considered a request for reconsideration filed with the same facts as this Request and with the same applicable Code, which has not been amended since April 2016. In November 2018, Spink Butler LLP on behalf of Boise Hunter Homes filed a request for reconsideration of the Council's decision to approve the Owyhee High School(H-2018-0075). The written request was addressed to the City Council, care of Planning Division Manager, Caleb Hood, with a copy to Mr. Nary and to opposing counsel. See Attachment D. The request was delivered via U.S. mail and electronic mail to Mr. Hood with no apparent direct copy to the City Clerk. See Attachment E. The Council considered the request and ultimately declined to reconsider the decision approving the Owyhee High School; in its Order denying the request, the Council made the following finding: "A Request for Reconsideration dated November 26, 2018 of the above-captioned matter by the appellant Boise Hunter Homes was properly filed." See Attachment F (emphasis added). There is no reasonable basis to find that this Request, filed in the same manner as the Owyhee High School Request and under the same Code,was not properly filed. While we disagree with Mr.Nary's assessment of the facts and Code in this instance,we certainly respect his stated policy desire to avoid reliance on city staff for delivery to the City Clerk, and this office will be sure to deliver future requests to the City Clerk directly. Mr. Nary's memorandum recognizes "It is also within the purview of the City Council to rule that since this Request was ultimately delivered to the Clerk by the deadline date because of the fortunate circumstance of Ms. Allen's diligence then service can be accepted." We ask the Council to find that the Request was properly filed based on the specific facts presented—in particular that the Request was timely delivered to the City Clerk in conformance with UDC 1-7-10. Once that determination is made,we trust the Council will fairly and openly consider the substance of the Request for the legal and policy reasons therein described. We appreciate the Council's consideration of this memorandum and of the Request itself. Attachment A Deborah E. Nelson From: Sonya Allen<sallen@meridiancity.org> Sent: Tuesday,August 4,2020 4:53 PM To: Stacy Wardein Cc: Bill Nary;Deborah E.Nelson;Jeffrey W.Bower Subject: RE:Case No.H-2020-0012[IWOV-GPDMS.FID990895] Thank you Stacy.I'll send this to the Clerk. From:Stacy Wardein Sent:Tuesday,August 4,2020 4:34 PM To:Sonya Allen Cc:Bill Nary;Deborah E.Nelson;Jeffrey W.Bower Subject:Case No.H-2020-0012[IWOV-GPDMS.FID990895] External Sender-Please use caution with links or attachments. Attached is a Request for Reconsideration regarding the above. Thank you, Stacy Stacy Wardein,Legal Assistant GIVENS PURSLEY LLP 601 W Bannock St,Boise,ID 83702 direct 208-388-1249 fax 208-388-1300 stacywardein@ ig venspursley.com www.givenspursley.com Givens Pursley remains open and continues to provide high-quality representation to our clients. We understand the challenges COVID-19 presents to our clients and this community.We have taken precautions to protect our staff and visitors,and to inhibit the spread of COVID-19.For example: 1.We offer online video meetings to all current and prospective clients.We can connect with you regardless of your operating system or device.You can even use your smartphone for videoconferencing. 2.We use e-signatures so you can execute documents without coming to the office. 3.We understand the confidential nature of our work and the impedance of face-to-face interactions.We will schedule personal meetings when necessary. Attachment B i Chris Johnson i From: Sonya Allen Sent: Tuesday,August 4,2020 4:54 PM To: Adrienne Weatherly;Charlene Way;Chris Johnson Cc: Bill Nary;Andrea Pogue;Bill Parsons;Caleb Hood Subject: Cedarbrook-H-2020-0012 Request for Reconsideration Attachments: 2020-OS-04 Request for Reconsideration.PDF i i From:Stacy Wardein<stacywardein@givenspursley.com> Sent:Tuesday,August 4,2020 4:34 PM To:Sonya Allen<sallen@meridiancity.org> Cc:Bill Nary<b nary @me ridiancity.org>;Deborah E.Nelson<den@givenspursley.com>;Jeffrey W.Bower <jeffbower@givenspursley.com> Subject:Case No.H-2020-0012[IWOV-GPDMS.FID990895] External Sender-Please use caution with links or attachments. Attached is a Request for Reconsideration regarding the above. Thank you, Stacy i Stacy Wardein,Legal Assistant GIVENS PURSLEY LLP 601 W Bannock St, Boise, ID 83702 direct208-388-1249 fax 208-388-1300 stacywardein@givenspursley.com www.givenspursley.com • • UPDATE Givens Pursley remains open and continues to provide high-quality representation to our clients. We understand the challenges COVID-19 presents to our clients and this community.We have taken precautions to protect our staff and visitors, and to inhibit the spread of COVID-19.For example: 1. We offer online video meetings to all current and prospective clients.We can connect with you regardless of your operating system or device.You can even use your smartphone for videoconferencing. 2. We use e-signatures so you can execute documents without coming to the office. 3, We understand the confidential nature of our work and the impedance of face-to-face interactions.We will schedule personal meetings when necessary. Our team appreciates the trust you have placed in us.We will continue to provide the same relentless legal representation that we have for over forty years. If you have any questions,comments,or concerns,please do not hesitate to contact us. 1 Attachment C 5carch In Weliunk aci,"n mtridianoty >' projects > 2020 1 Cedarbr-OASubdiviSian AZ,PP H-20204412 531EMI es Name date created Date modified Page[uunt d Agency Comments 3w'10201:11.1 g PN1 W712020`s-11.66PM d Public CerrifntoLS 3141Z0201:11:26PM 71912o202:1413PM ❑ ApPll<ation 314/202012:SS:10 PM 31412020 1:3&-12 PM 152 ❑ CC.kcria Notice of MtURng69 91212020 722:0d AM S11272020 721,04 AM 1 ❑ CC-Arcrla Notlee of Keanng7-7 611112020 7:32:33 AM Us 1129M 7:32:38 AM 1 ❑ cc-AffldavnofauplKapan5.9 S11 91202 0 9:05:32AM 5119120201:4&31PM 3 ❑ CC•AFfldavq OFSW Pmi;Ing for 5.9 SQ7120208:64;58AM 512712OM 823:55AM 5 ❑ CC•ApplKarrr5gegaust fqr Reconsrderahon W512020 7:1S:20W 815120M 7-15d0 AM 5 ❑ CC-Appl"nt'5lette+W City CounoI 7RI2020 2:12:33 PM 71712020 2:12:37 PM 3 ❑ CC.AppiKant'5 Request to Ca pnim to July 7th W312020 11:SQ07 AM WY20M 11:5v:o7 pJ,1 1 ❑ CC.Ce¢ ItYook Revisions teftw 61 2 9120 2 0 9:W ASAM 6IM202U 9:501AS AM ❑ CC-Colared landscape Rendering 612W20209'4t'56 AAt A129i202U 9'42'04 aa1 1 ❑ CC-Commrss a Re dmmendat]Wr.and 51aft RrpOr 712fMx20 11:U7;17AM 712f2OX 11:0-4-0 AfA 47 Attachment D ATTORNEYSS P � N K ED` U T L E R AT LAW T.HETHE CLAM-( (208)388-3327 HCL.ARK@SPI N KBUTLER.COM Via U.S.Mail and electronic mail (chood©rneridiancitu.orQ) November 26,2018 Meridian City Council c/o Caleb Hood,Planning Division Manager City of Meridian 33 E.Broadway Ave. Meridian,Idaho 83642 Re: REQUEST FOR RECONSIDERATION Findings of Fact,Conclusions of Law for Owyhee High School(H-2018-0075) SB File No.23133.0 Dear Mr.Hood: Please consider this letter a request for reconsideration pursuant to Meridian City Code 1-7-10 and Idaho Code Section 67-6535. [content of Zetter omitted] Very truly yours, T.Hethe Clark he/bdb c: Client Mark Freeman (mfreemanQfoleyfreeman.com) Gary Allen(garyallenQgivenspursley.com) Bill Nary,City Attomey(bnaryQmeridiancity.org) Attachment E M o n 11/26J2018 4:12 PM Barbara Beaushaw �BBeaushaw@spinkbutler.corn> Request for Reconsideration(H-2018-0075) To 'diood@meridiandty,org' Cr 'ttudcerlahoisehunterhomes,com';Geoffrey M.Wardle;Nettle Clark;'mfreemanWoleyfreeman,rom';Gary G Allen;'hnaryrlmeridiandty.org' Ea Reconsideration Letter-WASID(Final),PDF M 2 MB Please see the attached letter from Hethe. Please let me know if you have any questions. Thank you, Barb Barbara Beaushaw,Legal Assistant 251 E Front Sheet,Suite 200 1 PO Box 639 1 Boise,Idaho 83701 bbeaushaw@srphkbutler.cam I T208.388.10M I 1=2M.W8.1001 S P I N KLFE_ B UTLER ; ATTORNEYS AT LAW CONFIDEKTIALFFY MOTICE= It may cminn inbxarallon Ihatisprinleged,mnfi k!nlial,andbrpml c]Fmm alwA m unde ver r apphmhlela mci�dng,bit—1 linited la the a'lomey<fentpmilege arrd,br xar4 prod id—Irma. IF?auare not the intended mopientoF his ban rnn i n pl..-pl..-nobly the sender ii diabely by xlephone.Oo nol deli ,d�'bule-—py'his .ransmissnn,ci cleae its_ ,amke any anion in mlionoe w the nFx zd n it wniains. THIS E- MLI&NOr AN OFFER OR ACCEFFANCE: Nxsilhslandngthe unaprm F]ecmnic Transac6a-Acl u arry other lxr&simiar impon,ahserxanexpeess slaxrnmlwlhe wra-ary mrrairred in the aynail,rreilherlFixe- rnai na any allaeArnenl aie an offer or acceplanee to enkr imoa om tra ot,and aie notinlendedbbind the under&n gdharperwnor—lily. Attachment F BEFORE THE MERIDIAN CITY COUNCIL C/C 12-11-2018 IN THE MATTER OF THE REQUEST ) Case No.H-2018-0075 FOR RECONSIDERATION OF OWYHEE } HIGH SCHOOL ) } WRITTEN MEMORANDUM OF CITY COUNCIL ACTION TO DENY REQUEST FOR RECONSIDERATION AND AFFIRM BY BOISE HUNTER HOMES ) ITS DECISION IN THE MATTER APPELLANT. ) A Request for Reconsideration dated November 26,2018 of the above-captioned matter by the appellant Boise Hunter Homes was properly filed. The City Council scheduled the request to be considered at its regularly scheduled meeting on December 11,2018 and provided Notice of such to the appellant. The City Council considered the written request and AFFIRMED its decision as set forth in the Findings of Fact, Conclusions of Law,and Decision and Order dated November 7,2018. An affected person aggrieved by the final decision in this matter may seek judicial review as provided by chapter 52,title 67,Idaho Code. By action of the City Council at its regular meeting held on the 111h day of December,2018 ROLL CALL ON MOTION TO AFFIRM its decision as set forth in the Findings of Fact, Conclusions of Law, and Decision and Order dated November 7,2018: COUNCILMAN TREG BERNT VOTED YEA COUNCILMAN JOE BORTON VOTED YEA COUNCILMAN LUKE CAVENER VOTED COUNCILWOMAN GENESIS MILAM VOTED YEA COUNCILMAN TY PALMER VOTED YEA COUNCILWOMAN ANN LITTLE ROBERTS VOTED YEA MAYOR TAMMY de WEERD(TIE BREAKER) VOTED N/A REQUEST FOR RECONSIDERATION Case No.H-2018-0075 PAGE 1 OF 2 Attachment A Deborah E.Nc Ison From' Swwya Allen <salleaPmeridiandityr_o-rg} Seat_ Tuesday.August 4.2020 4:53 PM TV; Stacy Wardeln Cc, Bill Nary,Deborah E?delson;)efffey W.Fowff 5uhjr.CC RE:CA3e No.H-2026-CO12 DVV0V-GP i 1S.FId99W5] Thank you Stacy.I'll send this to the Clef€- From:Storey W W drt Sent:Twiday.August 4.2020 4,34 P41 To: Sonya Allen Cc: Bill Nary; Deborah E.Nelson,Jcrfmu W, Bower Subject:Grse No-H-20ZO-012[1 OY-&PbMS.FJM908g3j E k li ruu I Send r-Fease we eatlOw with links thr a3rbchmcn . Attach d is a Reques[for Recnnsidrui44wi rrgarding the above. Thank you, 51�cy Stacy Wardeity Lrko Asgiswrd 601 W Bannock St.Boise, ID 11J7♦}2 direct ZO-398-1249 Elm 709-M,1300 StdCy Vr'LrilCkrFr,�1 V C�Sj 1tGi4�.3(y ,�} W�'w,e i yes S sy urx1�y.+:un I Givens Pursley mmalns upon mud euntinues ter pnivide high-quality mprenotetion to our tlftnis. e widerswnd Ilu chancre} .OVID-19 prceents to our c[ients sod this community-We have Iakcn prccatations to protect our staff and visitors wid to irlhibir Lhr,4TKraw of COVID-11],FVT example: .We offer um]ir,e widr❑mC�ALrig5 W a]I cwcm and prospoctive climrs. We-08a oanneet with ytln zr$arr im of your oparjbn�system or dewier-You t:rm even use your saaartphone for widaaaonfcn reireg 2-We ugh c-signatsu'es so you can execute dAXW1WC is wit OLIL coming Is3 lire nfllice- 3.We and iand the eanfidential nauiv oiour work mjyJ the impcdan"of f e•to•race interwtinn_ti-We will schedule personal niaatings ufien necessary- L Attachment B Chris Johnsart From: Sonya Allen Seat Tuesday,August 4,2020 4:54 PM To, Adflenne Weatherly:Charlene Way.-ChrisJohri5an r Bill Mary,Andes Po kt4e,130 Pw5Qns,Caleb Hood Subject Cedarlmook- W-2020•0Q12 Request fe,r Reoonsrderatlan Attachments: 2020-09-D4 Request for Re€orrsideratloq,PpF Frorn:Stacy Warttein<natYwaFdein Venspurs€ey,cam} 5WI:TueSdaXr August 4r 2D20 4:34 PM! To;Sonya Allen<sallen@inerldtanclty.o-rg-� Cr,RM Nary ctnafy@mer+diarKji y,ar&>;Deborah E.Nelwn cden@ glvenspursley,eolri,;leffroy W.Bower -:jaffbawtrggiverlspursley,Corn> Subject,Caw No,H-2020-0012[lwaV-GPtM 5.rl ce908451 FAternai ScFLder-Pkpsc,vw caution with links or attacltmcnts, AttaL,hed la a Request far Reeoin&ldera Hun regard i ng th-e above- Thank your Stacy Stacy Wa rdein, Legal Assistant rvvis PUR,91, Y UP 601 W Bannock 5t Boise, ID 33702 d irett 2o0-388-1249 fax Mali 1344 Alp. wardeirt@plven$pursley,com waves-elWnsp uMlfa-Gom COVID-19LIPL)ATE Givers MMIDy rernalns open and rvnlnues to provklo hig"ueliiy reprmontatlan to our epepla- Wounderslend Use tha legeaCOVID-iB presermaio Wr diarne and Ihacommmhy.We heue Fakan rro oiwn Iq prvhKapurmeN eF1jvi5 we, and 10 rrhlbikthe spread aFCQVID•19.Far azprnPNI: I VNe offer cnllna vMeo-mealkpa W v1 currelk;and prospedwe 4 us.W a can connect wln yftu regmlksi of yaw operellf,g el/Lhf,S u d,Ydae.YOU n lYkh J88 yWr n nmLph�ne fat vldpgqanfnrencl,g k l+N.woes Qhnaalreaapyou€-pn execute dowlriorle Yvlrrwutcnlm41olhe o". 9 Vde Und& tarsd me eonmfwbisl naive of ourvmrk Nlewn s&ad,ln pmsahul mmilhgs wham wdedsary. Our Wanl apprarJPloa ft VM y*Ll hMM plecad In ae,We g111-0prpleue!4 ,tde IM f m pa reAenlfc&e 1!g"l f6prdeenLtbt k lhal w haoe for ayw If you have any questions,comrnents,of coneeans,prease do not hesitate to rointart as. Attachment C f'� I.A., Search In Wehunk rr:nnc�a !� �� M2TidlarlCiry > PfOjeCtS > 2020 ? Cedarbraak Subdivision AZ,PP H•20204012 53 Entries Hama fate created Oate modified pa"[4 k d ggcrxy[ammerxs 31a1202n 1:11:19PM 717120.0 S0 1:6pM [] P11bii4 Corwents 3.+df O t:11:26FM 71*2w 2:1sl3 PM ❑ ApvliratfOn 3i412M 12:5tt10 PM 31412M 13E:92 PM 152 ❑ CC-Accela Hotice of Keaaeng&9 511212920 7:22:0d AM 5112/2020 7:22N4 AM 1 ❑ CC-Accela elovee of fteanng7-7 W 111207 073r38AM All IYZP20 7:32:38AM 1 ❑ CC-Afildwn 9f Put4r{atmp 6-9 SlIW 1209:05-32 AM SlIV202D f:4831 PM 3 ❑ CC•AffIdM of Sign PpSting for 6.9 S027120208:04:58AM 51271202U8:23;55 AM 5 ❑ CC L Appll[anr5 aegeust fu RfKonstderatlon W512020 7:15:20AM 6IV2029 T15�dOAM 5 ❑ CC.Appl"rrt'Sfettw w cltycounal 71712ON 1:12:33PM 71712070.2:1237 PM 9 ❑ CL•AppiKanr5-llequest to CanUnue to July 7th WBV202U ll:SQ:D7AM W3QOM 11:5"7 MA 1 ❑ cc-cadaTbroakzmi4orlstetter fd29120209:50ABAm 4129120209:50AIdAM 2 ❑ CC.Cof lrpd Ldedssa110tendenng 6 2$72020"1:5Ce AM 1.3 ZV202 9:42=Pdd 1 ❑ cc-Commnsion Re OMm6f16WJW19and Staff"r 712fNa T1:87;17AM 712r202u 11:0fis2 A?A 47 Attachment D CL SP INK MBUTLEIR __j AT10P NEYS AT LAW T.Mrrwr;CLAFK (208)3LIWL427 L 1AEM_V5F'1NK 7JTLER.C9M Via U.S.Mail grad eketroni 'm arr(chaoMnterrd1=dfy_ � NovcmL er 26,2018 Morid!an City CaundI c f o Caleb Hood, 1911avning Division Manager City of Mt-ridian 33 E.Broadway Ave. MferidiM Idaho 83641 Re: REQUEST FOR RECONSIDERATION Findingg of Fact,Conclusions of Law for Owyhee High School �11-20154 S) 513 Fiic Nn-231310 Dear Mr. Hood- Please consider this letter a rg_ uvst for reconsideration pursuant to Meridian City Code 1-7-10 and Idaho Cade Section 67-6535. [content of letter omitted] Very truly yours, T_Hethc Uark he/bdb C: Client Mark l're+emaet (mfreernaztlfalerfreeman.crttl Gary Allen(ftary iygaagursley.com) Bill Mary, City Attorney(brava meridiancit .or Attachment E Mon 1 11261201 8 4:12PM Barbara Beaushaw <BBeaushaw@spinkbutler.com> Request for Reconsideration (H-20115-0075) To 'chood@meridiandty.org' Cc 'ttudcerfboisehunterhomes.com';Geoffrey M.4qardle;Hethe Clark;'mfreemanMleyfreeman.com';Gary G Allen;'bnary@rneridiandty,org' par Reconsideration Letter-WASQ(Final).PQF M 2 MB Please see the attached letterfrom Hethe. Please let me know if you have any questions. Thank you, Barb Barbara Beaushaw,legal Assislont 251 E Front Sheet,Suite 200 1 PO Box 634 1 Bcke.Idaho 83701 bbeaushaw@soinlbutler.com I T 208.38 AXO I F 20&388.1001 SPINKFBUTLER; ATTORNEYS AT L A W CONFI]E WMLIrY NOTICE:rFis•sanzmisznn is hrlendedady for the use F Jr ndvid.ral{z}named as rrdperin.It my cmlan irkn—lim Ihat is prMleged,mnlidenlial,nnd'm pml d From dzdpsure urder awoi-hle law it tiding.ho..nol linited Iq the a.I—y<ient priilegeand.brwrk prods d—lnne.If ruare not the irberded m6pentoF'his transm®on,please nobly the sender iarnediably by xleptnne.Do nol deliver,d�rihule mmpy'his .raps mun,cl cI—e its mnterd3,p takr_yaction in mliznce an the i l—fian itooniaim. THIS E- MLI&WOTAN OFFER OR ACCEPTANCE: Notwilhslancingthe unaprm@-'mnic Tmnsaclions Acl a arymher bwafiinMnrimpud,ahsenLan-pess slaxmmlta the mriarymr'zimdinlhisemail,milFarlHse- mai nor any.ILxh—nI are an o4fi—accaplan¢Ie enkr iM .ranl,d.and am not inlrnded] hind the sender or any,lher pers—enlily. Attachment F BEFORE.THE MEJUDIAN CITY COUNCIL CJO 12-11-2018 TN THE MATTER OF THH REQLJHST ) Case No.Ti-2018-0075 FOR RIsCONS)DE`sFtATION OF 0WYI IEE � HIGH SCHOOL � } W IJ`TEAT MEMORANDUM OF } CITY COUNCIL AUFION TO } DENY REQUEST FOR } RFCONSIDERATTON AND AFF'rRM BY BOISF.rIUNTFA FTO MES } ITS DE CMICON IN THE MATTER APPEI LANT- � A Request for Recomideration dared NOWMber 26,2018 ofthc above-captioniA raaw by the appellant Boise Hunter Homed was properly fiple4 The City Council scheduled the requi-_tto he comidered at its regularly scheduiad meeting on L wember 11,2019 aaA provided Notice of stack to the appellant, The City Council considered the written request and Al—'FIRMED its decision as set Forth in the Nadingg cfFact,Conolusians of Law,and Dccisian and Order datodNavembcr 7,2.01 S. An affcx:iml Wsun a riovcxl by the fa Rd decision in this maurr ndy s'cck judicial rcvinv as pyovidcd by chapter 52, title 67,Idaho Coda_ By action of the City Council at its regular meet ng held on the l I"'day of December,2018 ROLL CALL ON MOTION TO AFFIRM its decision as sct forth in the Findings of Tact, Coaclasions of Law,and Decision and Order daaxad Novembu 7,2018, COUNCILMAN NCILMMN T7REG BERNT VOTED YEA COLJNCIL-MAN JOE BORTON V(Y1'EI] YEA COUNCaMAN LUKE CAVR' LR VOTED C IDIJNCii.WO74 AN GFN1:9IS MT.AM VOTFT) YFA COUI-CILtAAN TY PA-L .FR VOTED YEA COUNCILWOMAN ANN LFITL1=RLUBERF VOTED YEA MAYOR.TA MY de VnM D (TIE BREAKER) VOTED NIA Bjj�QUJ?S:r FOR kFL�Ur44It)FftA 10N Cm,n No.n-24184)075 PAGE 1 OF 2 GIVENS PURSLEYLLP Attorneys and Counselors at Law 601 W.Bannock Street Gary G.Allen Kersti H.Kennedy Randall A.Peterman PO Box 2720 Charlie S.Baser Neal A.Koskella Jack W.Relf Boise,ID 83701 Christopher J.Beeson Michael P.Lawrence Michael O.Roe Telephone:208-388-1200 Jason J.Blakley Franklin G.Lee Jamie Caplan Smith Clint R.Bolinder David R.Lombardi Robert B.White Facsimile:208-388-1300 Jeff W.Bower Kimberly D.Maloney www.givenspursley.com Preston N.Carter Kenneth R.McClure Jeremy C.Chou Kelly Greene McConnell William C.Cole(Of Counsel) Michael C.Creamer Alex P.McLaughlin Amber N.Dina Melodie A.McQuade Bradley J.Dixon Christopher H.Meyer Kenneth L.Pursley(1940-2015) Deborah E.Nelson Thomas E.Dvorak L.Edward Miller James A.McClure(1924-2011) den@givenspursley.com Debora Kristensen Grasham Judson B.Montgomery Raymond D.Givens(1917-2008) 208-388-1253 Donald Z.Gray Deborah E.Nelson Alex J.Gross W.Hugh O'Riordan,LL.M. Brian J.Holleran Samuel F.Parry August 4, 2020 VIA EMAIL: sallen@meridiancity.org Mayor Simison and Meridian City Council c/o Sonya Allen, Associate Planner 33 East Broadway Avenue Meridian, ID 83642 Re: Request for Reconsideration in Case No. H-2020-0012 Dear Mayor Simison and City Council Members: Givens Pursley LLP represents Toll Southwest, LLC ("Toll") who requested to annex, zone, and plat 325 lots on 118.58 acres in Meridian's Area of Impact (collectively, the "Application" or "Project"). The Planning & Zoning Commission heard the Application on May 7 and recommended approval. On July 7, the Application came before the City Council who voted to deny the Application. On July 21, the City Council adopted its Findings of Fact, Conclusions of Law, and Decision & Order (the "Decision") denying the Application. The Decision denies the Application for the reasons set forth in the Findings that are attached to this letter as Exhibit A.' Per the Findings, the Council denied the Application for two main reasons: (1) lack of compliance with the Comprehensive Plan's goals and objectives for lot size/density transition; and (2) adverse impact on area schools. This request asks the Council to reconsider its Decision.2 1. The evidence in the record shows that the Project complies with the Comprehensive Plan's goals and objectives for compatibility between neighboring uses. The Findings conclude that the Project's zoning is compatible with the FLUM but that the Project is not consistent with the Comprehensive Plan's goals and objectives for transition in lot size/density to existing residential uses.3 The Findings do not cite any specific provision t Decision at p. 2 ("The [Application] is hereby denied per the Findings ..."). 2 This request for reconsideration is made pursuant to U.D.C. § 1-7-10 and I.C. § 67-6535. 'Decision,Ex. A, at p. 48. August 4, 2020 Page 2 of the Comprehensive Plan that the Project does not comply with, as required by I.C. § 67-6535.4 In any event, the Project is consistent with the Comprehensive Plan's transitioning goals set forth in Section 3.07.01A, which provides that new development should utilize "buffering, screening, and transitional densities" to design projects that are compatible with surrounding uses. The goal of Section 3.07.01 is to encourage compatibility of neighboring uses and maximize the use of land,s not to mandate a specific lot size adjacent to Ada County rural estate properties. The evidence in the record shows that the Project incorporates all three recommended design elements—buffering, screening, and transitional densities—to make the Project compatible with existing residential uses to the west. In addition to the existing grade changes and building setbacks on adjacent Ada County properties, the Project proposes the following to encourage compatibility: • Construction of a 3-4 foot raised berm with wood-styled fencing and trees all along the Project's western border as an additional buffer and screen;6 • Increased rear setbacks in the R-2 zone from 15 feet to 30 feet as an additional buffer;7 • Zoning the property adjacent to the Ada County property R-2—the lowest density designation available in the City's zoning ordinance—and transitioning to higher densities moving west to east;8 • Requiring that all lots in the R-2 zone adjacent to the Ada County property be a minimum 1/2 acre in size; and • Limiting lots in the R-2 zone to 60% single level.' These site design features provide buffering, screening, and transitional densities and were specifically proposed to fulfill the City's compatibility goals outlined in Section 3.07.01 of the Comprehensive Plan. The result is a site design that is compatible with the surrounding residential uses while still fulfilling the property's FLUM designation of medium density residential and fulfilling the Plan's goal to maximize the use of the land for needed housing. Toll remains open to further discussion about additional buffering, screening, and transitional density measures to further comply with the Comprehensive Plan. In reviewing the recorded audio from the Council's July 7 hearing, we learned that the audio from the portion of Toll's opening presentation describing the Project's design features for compatibility is nearly inaudible and indiscernible.10 Idaho law extends due process protections to applicants in land use hearings, which requires that applicants be given an a Idaho law requires that the Decision explain the Council's rationale"based on the applicable provisions of the comprehensive plan."See I.C. § 67-6535(2). 5 City of Meridian Comprehensive Plan§ 3.07.00. 6 July 7 Public Hearing Video at 1:46:40. 7 July 7 Public Hearing Video at 1:46:30. 8 U.D.C. § 11-2-1. 9 July 7 Public Hearing Video at 1:47:50. io July 7 Public Hearing Video at 1:44:18-1:48:20. August 4, 2020 Page 3 opportunity to present evidence." The malfunctioning audio equipment deprived Toll of its due process rights. For this reason and the reasons outlined above we request that the Council reconsider its Decision related to the Project's compatibility with the Comprehensive Plan. 2. The evidence in the record shows that the Project will not have an adverse impact on schools. The Council's Findings state that the Project will result in adverse impacts on area schools.12 However, the West Ada School District provided a comment letter on the Application demonstrating that each school serving the Project has current capacity.13 Specifically,West Ada's letter provides: (i)the elementary school serving the Project will have a capacity of 625 students and only 556 students are enrolled; (ii) the middle school serving the Project has a capacity of 1,000 students with 969 enrolled; and(iii)the high school serving the Project has a capacity of 2,400 with only 1,965 students enrolled.14 Evidence was also provided to the Council that the West Ada School District as a whole has current capacity and has programmed improvements to expand capacity to meet projected growth.15 Evidence in the record further shows that West Ada School District, through its School Facility Plan, owns property and plans to build an additional elementary school to serve the Project area.16 Overall, evidence in the record does not support a finding that the Project will have an adverse impact on area schools. The Council's Decision denying the Project for adverse impact on schools is inconsistent with other City decisions approving residential developments in areas with similar or worse school capacities. It is also inconsistent with the City's standard practice of approving projects where the school district's comment letter and the applicant show available capacity. The school capacities available to the Project stand in sharp contrast to other parts of the City where schools are already overcrowded and development continues to be approved. As submitted into evidence, West Ada School District plans for new schools and expansions based on modeling and demand through its School Facility Plan. The modeling takes actual growth into account, and the school district did not raise any concerns with the Project. We believe the Decision creates an impossible standard for residential developers by requiring them to rebut perceived concerns with West Ada School District's long-term growth plan even when evidence shows area schools have existing and planned capacity that takes approved growth into consideration. The equal protection clause requires the City to treat all applicants the same. Applying the school capacity standard used to deny this Project to all pending and future applications, as required by the equal protection clause, will result in the denial of many, if not all, residential developments due to perceived future school capacity concerns. 11 Neighbors for a Healthy Gold Fork v. Valley Cty., 145 Idaho 121, 127, 176 P.3d 126, 132 (2007). 12 Decision, Ex. A, at p. 48. 13 Decision, Ex. A, at p. 3. 14 Decision, Ex. A, at p. 3. 15 July 7 Public Hearing Video at 1:53:04-2:00:02. 16 July 7 Public Hearing Video at 2:05:50. August 4, 2020 Page 4 3. Reconsideration request. This Council may reconsider a decision where a party identifies deficiencies in the decision." As described above, substantial evidence in the record does not support the Findings, the Decision is arbitrary, and the Decision does not meet the standards of I.C. § 67-6535 because it does not provide a rationale for the Decision with citations to applicable standards. Further, audio problems during the hearing compromised Toll's due process right to present evidence. Thank you for your consideration of this request for reconsideration. We recognize and appreciate the substantial time and effort the City Staff and City Council have invested in this Project. We believe that another hearing on reconsideration will provide Toll with an opportunity to present evidence as allowed by due process and will also allow the Council to take a fresh look at the standards and evidence that warrant approval of this Project. At a reconsideration hearing Toll would look forward to a continued dialogue with the Council regarding issues surrounding compatibility with our neighbors. Sincerely, Deborah E. Nelson cc: Bill Nary 17 U.D.C. § 1-7-10(4). August 4, 2020 Page 5 EXHIBIT A X. FINDINGS A. Annexation and/or Rezone(UDC 11-513-3E) Required Findings:Upon recommendation from the commission,the council shall make a full investigation and shall,at the public hearing,review the application.In order to grant an annexation and/or rezone,the council shall make the following findings: 1. The map amendment complies with the applicable provisions of the comprehensive plan; The City Council finds the proposed zoning map amendment to R-2,R-4 and R-8 is consistent with the associated FL UM designation;however,the proposed development is not consistent with the goals and objectives of the Plan pertaining to transition in lot sizes/density to existing residential properties and orderly growth. 2. The map amendment complies with the regulations outlined for the proposed district,specifically the purpose statement; The City Council finds the mix of lot sizes proposed is consistent with the purpose statement of the residential districts in that a range of housing opportunities are proposed consistent with the Comprehensive Plan. 3. The map amendment shall not be materially detrimental to the public health,safety,and welfare; The City Council finds the proposed zoning map amendment should not be detrimental to the public health,safety and welfare. 4. The map amendment shall not result in an adverse impact upon the delivery of services by any political subdivision providing public services within the city including,but not limited to,school districts;and The City Council finds the proposed zoning map amendment and subsequent development would result B. Preliminary Plat Findings: In consideration of a preliminary plat,combined preliminary and final plat,or short plat,the decision-making body shall make the following findings: 1. The plat is in conformance with the Comprehensive Plan; The City Council finds that the proposed plat is not in substantial compliance with the adopted Comprehensive Plan in regard to transition in lot sizes/density to adjacent rural residential properties, transportation(rural roadways/intersections adjacent to the site),and overburdening of area schools. 2. Public services are available or can be made available and are adequate to accommodate the proposed development; The City Council finds that public services could be provided to the subject property.(See Exhibit B of the Staff Report for more details from public service providers) 3. The plat is in conformance with scheduled public improvements in accord with the City's capital improvement program; Because City water and sewer and any other utilities would be provided by the development at their own cost,the City Council finds that the subdivision will not require the expenditure of capital improvement funds. 4. There is public financial capability of supporting services for the proposed development; The City Council finds there is public financial capability of supporting services for the proposed development based upon comments from the public service providers(i.e.,Police,Fire,ACHD, etc.). (See Section IXfor more information) 5. The development will not be detrimental to the public health,safety or general welfare;and, The City Council is not aware of any health,safety, or environmental problems associated with the platting of this property. ACHD considers road safety issues in their analysis. 6. The development preserves significant natural,scenic or historic features. The City Council is unaware of any significant natural,scenic or historic features that exist on this site that require preserving.