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Home My WebLink About01 Applicant Reconsideration ti Peron s t.vcti-Nin APPLICANT ITEM DATE SUBMITTED BY J vt 6u` (i� Rfi - 1 �. 1 r 11 - '3.416( jo°g4,," 1'1-Let!1L d6/ I �R �- Cov,6Y )- • I- L (o dk La BORTON W LAKEY LAW AND POLICY 141 E. CARLTON AVE., MERIDIAN, IDAHO 83642 (208) 908-4415 (OFFICE) (208)493-4610 (FAx) November 13, 2015 Mayor Garret Nancolas Members of the City Council City of Caldwell 411 Blaine St PO Box 1179 Caldwell,Idaho 83606 Re: Request for Reconsideration pursuant to Idaho Code Section 67-6535 Dear Mayor and Council, I represent John Guiliani and am writing regarding his application for a rezone and comprehensive plan map change in Case ZON-15-06 and the Order of Decision dated November 2,2015. The City's written order does not meet the requirements of Idaho Code Section 67-6535 and reconsideration of the decision and order and approval of Mr. Guiliani's application is warranted. My client would prefer to have the case reconsidered and the application approved based upon its compliance with the applicable code, comprehensive plan and standards. However, the Applicant would agree to a modification of the decision with the City denying the high density residential rezone request and approving the commercial downzoning to C3. This approach meets the primary concerns raised by the opposition at the previous meetings and hearings. The decision of the City Council does not meet the requirements of Idaho Code Section 67-6535. Idaho Code Section 67-6535(1) states: The approval or denial of any application required or authorized pursuant to this chapter shall be based upon standards and criteria which shall be set forth in the comprehensive plan, zoning ordinance or other appropriate ordinance or regulation of the city or county. Such approval standards and criteria shall be set forth in express terms in land use ordinances in order that permit applicants, interested residents and decision makers alike may know the express standards that must be met in order to obtain a requested permit or approval. Idaho Code Section 67-6535(2)states: The approval or denial of any application required or authorized pursuant to this chapter shall be in writing and accompanied by a reasoned statement that explains the Guiliani Rezone November 12,2015 Page 2 criteria and standards considered relevant, states the relevant contested facts relied upon,and explains the rationale for the decision based upon applicable provisions of the comprehensive plan, relevant ordinance and statutory provisions, pertinent constitutional principles and factual information contained in the record. (a) Failure to identify the nature of compliance or non-compliance with express approval standards or failure to explain compliance or noncompliance with relevant decision criteria shall be grounds for invalidation of an approved permit or site specific authorization,or denial of the same,on appeal. (b) Any applicant or affected person seeking judicial review of compliance with the provisions of this section must first seek reconsideration of the final decision within fourteen (14) days. Such written request must identify specific deficiencies in the decision for which reconsideration is sought. Upon reconsideration,the decision may be affirmed, reversed or modified after compliance with applicable procedural standards. Before the Applicant can consider judicial review he is required to ask for re- consideration. In the request for reconsideration the Applicant is required to note the specific deficiencies in the decision. In rendering its written decision the City must reference and base its decision on specific express criteria and standards. The City must also identify and explain the rationale regarding the nature of the non-compliance with those criteria and standards and its corresponding decision. In reviewing the record, staff and the hearing examiner listed thirteen goals and eighteen policies in the comprehensive plan that supported the application and none in opposition. The City Council specifically accepted those facts as listed in the staff report. In the written decision of the City Council, the Council also listed three goals and four policies that supported the application and two goals and three policies that did not. The items referenced from the comprehensive plan by the Council that did not support the application were public facilities and streets. Those are technical issues dealing with specific sewer and water capacity and availability and road design, functional classification and traffic counts. The city staff also noted that city code required a traffic study when a project generates 1000 new vehicle trips per day. That study would be provided when that standard was applicable in the future. The city staff showed that infrastructure was available and adequate along with some specific improvements to be made by the applicant. The City Council did not specify what the specific standards regarding sewer, water and roads were and how they were not met or would not be met by the Applicant. The City Council provides no other specific express criteria and no explanation or rationale regarding how the applicant did not or would not meet applicable specific criteria or standards. On the contrary, the record and technical aspects of the record support the application. The testimony of those in opposition was summarized in the written decision. Those testifying in opposition raised general "concerns" with the type of people that may live in high density residential housing and corresponding increased crime, overcrowding in schools, increased traffic, and availability of sewer and water infrastructure. Staff again answered the Guiliani Rezone November 12,2015 Page 3 technical infrastructure issues. No specific criteria or standards were noted by the opposition or the City Council regarding these "concerns"nor was non-compliance with any express standards referenced or explained in the denial of the application. The above noted provisions from Idaho Code 67-6535 were enacted by the legislature in 2013 in Senate Bill 1138. As noted in the Statement of Purpose for SB 1138,these changes were made to ensure that clear and specific standards existed and were analyzed and explained for the benefit of decision makers, applicants and affected residents. The legislature also intended to provide a process for reconsideration in an effort to avoid costly litigation. Idaho Code 67-6535 requires that a reconsideration process be used and available to the Applicant and that the Applicant must use that process before they can proceed with judicial review. A couple of other items need to be noted. Early on the Staff requested that the applicant submit a single application instead of separate applications for each parcel and the applicant was advised that the decision on the parcels could be divided. Prior to the Council hearing the applicant advised staff that they were willing to have any decision regarding the two parcels be made individually, in other words, that the City Council could approve one parcel and not the other. I understand that the Council was advised that the rezone decision on the parcels could not be split. I would argue that the council had authority and the City had authorization from the applicant to split the decision. The vast majority of opposition was against the high density residential zoning. The prosed C3 commercial rezone is a step down in the intensity of the current C4 zoning that exists on the property. In an effort to accomplish what the legislature intended in Senate Bill 1138, and provide a reasonable result which avoids further costly proceedings, the Applicant is willing to have the decision split with an approval of the commercial and denial of the high density residential request. It also appears that there may have been some ex-parte communications with some member(s) of the public and at least one member of the Council. One member of the opposition reminded the council members during the hearing of the imminent election and then went and spoke to one of the council members following the hearing ignoring the admonition not to communicate with council members until the process was complete. Any exparte communications need to be disclosed on the record including the name of the individual and nature of the communications. See,Historic Preservation Council. Inc. v. City of Council of City of Boise, 134 Idaho 651, 8 P.3d 646(Idaho 2000). I understand that the City has no procedure for reconsideration in its City Code. State Code provides that the request for reconsideration must be made within 14 days of the written decision. I.C. 67-6535(2)(b). This is a rezone and comprehensive plan amendment request and the Local Land Use Planning Act under Idaho Code Sections 67-6509 and 67-6511 and the City Code in Chapter 10 Article 3 provide the notice and public hearing procedures for these types of requests. That same notice and hearing procedure should be followed regarding this request for reconsideration. On behalf of the Applicant, based on the reasons noted herein, I respectfully request that the Mayor and Council reconsider their decision and modify the decision by approving the requested commercial downzoning to C3 and denying the high density residential rezone. The Applicant advised the City that it was willing to enter into a development agreement in its Guiliani Rezone November 12,2015 Page 4 correspondence to the Council dated September 28, 2015. The Applicant remains willing to enter into a development agreement although the necessity of such an agreement seemed to be focused more on the high density residential rather than the commercial request. Thank you for your consideration. Sincerely, BORTON-LAKEY LAW AND POLICY 41110 Todd M. Lakey WELLS FARG, 4K,N.A. 4126 MONTANA TIMBER PRPOUCTS,LLC. wwwwellaftb.ev,om 3605 Arthur St 93-527/929 Caldwell,11) 83605-6058 208-459-4138 12/1/2015 PAY TO THE ORDER OF City of Caldwell $ **627.00 Six Hundred Twenty-seven and 00/1 0 0***************************************************************************************************************** DOLLARS ( City of Caldwell PO Box 880 Caldwell ID 83606-0880 MEMO 147451-000 1150 000 00 4 i 26115 1:0 9 290 5 2781: 29 1 /4 79 9 270 City of Caldwell 12/1/2015 Date Type Reference Original Amt. Balance Due Discount Payment 12/1/2015 Bill Fees for literature 627.00 627.00 627.00 Check Amount 627.00 WF NEW#9927 147451-000 627.00 ........A......4.......A.,..„..A.;,..A.-,..A.,,A.A.A.A...-i.A.R.:A.A.,,A...........".A.,...4.,...„.,......4 sa la,..s,4,4,s,s,sw s,s,4.4-S4 so l..s4 s,,4.,,......s..,,.....4 is.,.......v vs...sod ss4.4 s,.4•,14,4".4 se s.4.44.4\44.01A41,104044444.444A4/4.444i,44,-.4,47.4;4.4,444,4N44, CITY OF CALDWELL Cash 0 Check# , Amount Tendered Change ,5 1 '- # Payment ,..-7 . i --1 . ). ; Date i ' ' ' _, 4 RECEIVED FROM ,k '-' ', %,,. , . , . . + ) , - V ,a 1 For t- ; ,•' ' , .. --1, ,,, i' , a ) f a f. ,f i f ; f * ,- " i1 Account No. BY v ... ,,, ,-, City of Caldwell Receipting Form Planning&Zoning,Engineering,and Fire Department Planning&Zoning Engineering Fire Department Totals Sales Qty Qty Qty Comprehensive Plan 10360 $ $ Ordinances 10360 $ $ Master Park Plan/Master Trails&Pathway Plan 10360 $ $ Xerox copies 1401 $ $ Audio Tape Duplication 10360 $ $ Special Use Permit Less than 2 acres 10200 $ 12530 $ 22025 $ $ 2 to 20 acres 10200 $ 12530 $ 22025 $ $ More than 20 acres 10200 $ 12530 $ 22025 $ $ PUD With subdivision 10210 $ 12530 $ 22025 $ $ Without subdivision 10210 $ 12540 $ 22025 $ $ Zone Change Less than 2 acres 10220 $ 22025 $ $ 2 to 20 acres 10220 $ 22025 $ $ More than 20 acres 10220 $ 22025 $ $ Annexation Less than 2 acres 10240 $ 12550 $ 22025 $ $ 2 to 20 acres 10240 $ 12550 $ 22025 $ $ More than 20 acres 10240 $ 12550 $ 22025 $ $ Comprehensive Plan Map 10300 $ $ Less than 2 acres 10260 $ $ 2 to 20 acres 10260 $ $ More than 20 acres 10260 $ $ Comprehensive Plan Text Amendment 10270 $ $ Subdivision Plats(non PUD) Preliminary 10180 $ 12511 $ 22025 $ $ Final 10180 $ 12512 $ 22025 $ $ Short plat 10180 $ 12513 $ 22025 $ $ Additional Fees Administrative Time Extension S $ Appeals/Amendments to Conditions 10290 1 5 a$1 $ Business Permit(Change in Use) 11040 $ $ Business Permit(No Change in Use) 11040 $ $ Certified Mailing 10340 $ $ Code Enforcement Admin.Fee 64240 $ $ Design Review Application 10330 $ $ Development Agreements 10335 i $ $o $ Hearing Examiner 10350 S $ Legal Notice 10310 f $ S Lot Line Adjustments 10280 $ $ Lot Split 10280 $ 12520 $ 22025 $ $ Manufactured Home Park 10190 $ $ Minor Land Use Application 10216 $ 22020 $ $ Minor Land Use Application Renewal 10216 $ $ Ordinance Text Amendments 10230 $ $ P&Z Commission 10350 $ $ Plat Amendments 10280 $ Regular Mailing 10340 yQ $ 60 Subdivision Time Extension 10180 $ Variance 10250 $ $ TOTAL: $ 4 7.? $ $ $ ---a 7 Tax 998 �7 i- VT-- V GRAND TOTAL $ 'oD ec�ns i dei\ree_A E2o.,-• GY� UPDATED: Y� L u// April Cabello From: Jarom Wagoner Sent: Tuesday, December 01, 2015 10:14 AM To: Brian Billingsley Cc: April Cabello Subject: FW: Giulianni Reconsideration FYI. I am still waiting on Mark regarding the legal. From: Todd Lakey [mailto:todd@borton-lakey.com] Sent: Tuesday, December 01, 2015 9:47 AM To: Jarom Wagoner Subject: Giulianni Reconsideration Jarom, I confirmed with John that we are good for the Dec 21 hearing and he said he will get a check to you today. Thanks Todd Sincerely, Todd M. Lakey BORTON-LAKEY LAW OFFICES 141 E Carlton Ave. Meridian, Idaho 83642 908-4415 (w) 493-4610 (f) www.borton-lakey.com Please do not send confidential, proprietary, or otherwise sensitive information via e-mail. E- mail is not a secure form of communication and may not be protected by the attorney client privilege. CONFIDENTIALITY NOTICE: This email is legally privileged. If you are not the intended recipient, you are notified that you have received this document in error, and that any reading, distributing, copying or disclosure is unauthorized. Thank you. 1 IA- -2 Jarom Wa oner From: Laren@lmb-con.com Sent: Monday,January 04,2016 10:32 AM To: Jarom Wagoner Subject: Florida ave redone Jarom, at this time the developer has asked that we pull our rezone application. Thank you Sent from my iPhone 1 \/�