Dec. 14, 2017 update: On Dec. 13, Ada County 4th District Judge Melissa Moody threw out the city of Star’s rezoning decision on the Crystal Springs development, and ordered the City Council to hold a new public hearing.
The reason: The city failed to record all Crystal Springs-related hearings, and instead relied upon meeting minutes and other documents as proof of its proceedings. Without complete transcripts, as required by law, Moody said the court cannot review the city’s actions to determine if it complied with state law.
“It is one thing to have to put Humpty Dumpty back together again; it is a different thing entirely when Humpty cannot be located,” wrote Moody in her ruling, which you can read at this link.
Neighbors of the proposed development did not meet a requirement to first ask the council to reconsider its vote before appealing the rezoning decision to a judge, Moody ruled. That barred her from considering most of the neighbors’ claims — “whether the City’s decision violated Petitioners’ right to due process; was tainted by ex parte contact; was arbitrary, capricious, and an abuse of discretion; and was not supported by substantial evidence.” But the meeting transcripts issue falls in a different area of state law, Moody wrote, allowing her to still examine that concern.
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Earlier reporting continues below:
Having cleared a recall election, Star’s city government now faces its next test with claims that it is sloppy about following state transparency and land-use laws.
An Ada County judge heard arguments Tuesday morning on whether the city improperly approved a large, high-density housing and commercial complex earlier this year. Neighbors allege council members weren’t up-front about outside communications regarding the Crystal Springs development, that the city has not been properly recording or noticing meetings, and that council members illegally approved a height variance for the project.
Star’s attorney strongly rebuts the claims, arguing the city gave proper notice and that the various transparency and land-use issues are misunderstood or didn’t happen. The appeal may in the end hinge on another defense: Star’s claim that the neighbors did not follow state law when taking the city to court.
The 198-unit Crystal Springs apartment complex would be built at the southwest corner of Idaho highways 44 and 16.
Its rezone split the council and the town, spawning the attempt to recall a mayor and a councilman, and leading to this court appeal of the vote. No matter the judge’s ruling, it’s not clear that Star’s struggle over growth is anywhere near an end.
More about Crystal Springs
US19 LLC, owned by Boise attorney T.J. Angstman and his Montana business partner, Jerry Kelly, is developing the Crystal Springs site.
If built as planned, Crystal Springs will feature seven or eight three- to four-story apartment buildings along the west side of Idaho 16, between Idaho 44 and the Boise River.
In addition to apartments, the development also will include a 40,000-square-foot farm-and-ranch supply store, Angstman said. He would not identify the store. He said a coffee shop and gas station are also in the works.
When US19 bought the land, it was already zoned for light office space, neighborhood businesses and up to two residential units per acre, according to Angstman.
US19 more than a year ago asked the city to rezone the land for high-density housing at 16 units per acre, and for commercial uses.
The Star City Council approved the rezone April 4. Councilmen Kevin Nielsen and David Hershey voted in favor. Councilmen Richard Lockett and Trevor Chadwick voted against it. That left the decision up to Mayor Chad Bell, who only votes to break ties; he voted to approve it.
Neighbors feel ignored
Just to the west, down Idaho 44, is the Heron River subdivision. Some people who live there worry all those apartments will lead to snarled traffic on the already busy highway. They also think drivers will cut through Heron River on their way to or from Crystal Springs, and that multi-story, multi-family housing will reduce their property values by 5 to 8 percent.
Six Heron River residents who live within a half-mile of Crystal Springs — Michael Crance, Arna Day, Carol Fleischer, Thomas Haigh, Douglas Pfeiffer and Douglas Weiser — asked a judge to overturn the rezone and order the council to hold a new public hearing on the project.
In their filing, called a petition for judicial review, the residents allege a number of violations of state and local law. Among them:
▪ The council, they say, approved an increase in the buildings’ height to 55 feet — 20 feet higher than city code allows — without notifying the public or requiring the developer to submit a variance application. Angstman said he asked for a 10-foot height increase in his application, but the City Council on its own changed that to 20 feet above code in the final decision. Todd Lakey, Star’s attorney, didn’t directly respond to this issue in court. Asked by the Statesman, he referenced “flexibility” found in development agreements, but said he could not elaborate.
▪ The neighbors also say legally required audio recordings or verbatim transcripts from three public meetings held between November and March on Crystal Springs are missing or incomplete. Andrea Carroll, the neighbors’ attorney, said Tuesday that Star’s recording equipment wasn’t working for at least four months; the city didn’t know until someone requested audio of the Crystal Springs hearings.
Of the three meetings, one actually didn’t involve a public hearing because the city attorney was ill, according to the city. Lakey argued the existing transcripts, minutes and written material were more than adequate for the court’s purposes for the other two dates. He said courts have ruled local government land-use proceedings are not judicial proceedings and are less formal, and thus a strict verbatim transcript is not always required.
▪ By law, a public official is required to disclose during a public hearing if he or she has had ex parte conversations — discussing a pending application or issue with the public outside of a public hearing. The neighbors allege Star’s elected officials “engaged in repeated ex parte communication” and cited several examples, including two letters sent to the city, one from Angstman and one from his attorney.
The first letter, from Angstman’s attorney to the city’s attorney, was sent one week after the city held its first hearing on the Crystal Springs project. The letter says the city may have violated state law in a conversation two council members, Chadwick and Lockett, had at the project site several days prior to the city’s first public hearing and did not later disclose until after the letter. (Scheduled for Nov. 15, 2016, that was the hearing that ended up postponed because of the attorney’s illness.)
According to the city, a neighbor walked over and asked if the council would deny the site’s rezone. Chadwick said, “no.”
“My client does not plan to pursue any legal remedies based on these violations,” states the Nov. 23 letter. “Its goal is get its application approved, not to stir up trouble or cause any problems. … This result is best achieved in this case by gently calling your attention to these issues … in the hope that you can informally address the issues without having undue attention drawn to them.”
At the next public meeting on Crystal Springs, on Jan. 17, Chadwick and Lockett disclosed the conversation.
The second letter, from Angstman to the mayor and city council, clarifies statements he made during the Nov. 15 public hearing about the project’s commercial uses and traffic study. The neighbors also claim an unnamed council member talked to Ada County Highway District staff about Crystal Springs without disclosing the contact.
The city says these and other ex parte contact allegations are incorrect — they either were eventually disclosed or never happened. Two council members did later have a private conversation with ACHD and ITD to answer questions the council had, announcing their intentions ahead of time and then describing their conversation at a later meeting. But as for the unnamed councilman reaching out to ACHD: “Although a council member initially attempted to communicate with ACHD regarding this matter they did not do so,” stated the city in its brief to the court. “The statement simply is not accurate. There was no ex parte communications to disclose.”
The first letter, from one attorney to another attorney, was not made part of the US19 file. The second letter was, and the city argues it was available to view along with the rest of that file.
Judge is ‘troubled’
Those arguments may not actually decide the case. Lakey also asked 4th District Judge Melissa Moody to deny the petition because the neighbors did not properly ask the council to reconsider its vote, a step required before they could take court action.
Under state law, when a city council makes a land-use decision, the public has 14 days to ask it to reconsider. If the city stands by its decision, the public can then petition a judge to review the case. But a decision is not considered final until the council approves it in writing.
The City Council voted to approve the project on April 4. The neighbors filed a reconsideration request the next day; the city denied it on April 18 because the written decision wasn’t finished yet.
Star officials did not issue that decision until late June. The neighbors filed their petition on July 17. Before then, they never asked the council again to reconsider.
Carroll said her clients were under the assumption that city code required them to file a request for reconsideration within seven days of the council’s decision. She said her clients were not aware the written decision was yet to come, and received no notice when it was finally issued.
“They complied with the spirit” of the law, Carroll said.
But that technicality may force the judge to dismiss the case.
“I am troubled by many of the things that occurred,” Moody said in court. “I think the city has a lot of problems with respect to its procedure. But my difficulty is getting at those problems. I think the failure to exhaust administrative remedies is a bar for the court.”
Moody said at the close of Tuesday’s hearing that she will rule on the case at a later date.
Voters have spoken
The other attempted rebuke against the city for approving Crystal Springs already has failed.
A citizen group, Concerned Citizens of Star — led by former Councilman Gary Smith and other Heron River residents — spearheaded an effort to recall Bell and Nielsen, arguing they “failed to represent the people that elected them.” With Hershey’s and Lockett’s seats already on the Nov. 7 ballot, Star voters were given a chance to weigh in on four of the five officials leading their city.
With 40 percent voter turnout, residents kept Bell and Nielsen and re-elected Hershey — the three people who voted in favor of Crystal Springs. Lockett, who voted against the rezone, was defeated by newcomer Michael Keyes.
Angstman and city officials told the Statesman they could not comment on the pending court case. But most of the officials were willing to talk about the election outcome; Lockett did not respond to questions on that topic. Smith also declined comment on both matters until Moody rules.
“The message that the voters sent was that we are doing our job,” Bell said. “We are listening. We are making sound decisions based upon ordinance and law. Sometimes that does not make everyone happy.”
To Chadwick, the lone observer and other “no” vote on Crystal Springs, “the message is clear that people are tired of the divisiveness that a few people are bringing to our community. With that said, people are also concerned with the future direction of the city. The key is how do you balance the rights of the land owners, the rights of the homeowners and the rights of all the people that live in our great town? We must do so by following the laws that have been set on making these decisions.”
Those who voted for the Crystal Springs rezone said they should have done more up front to explain their actions. Often, they blamed the dispute and harsh feelings on misinformation spread around town.
“In the absence of information, some people will write their own story,” Nielsen said. “The city should have been more proactive in communicating about the recall and letting people know what was going on so that the fables told by recall petitioners would not have been the only story many people heard.”
“Going forward I want to continue to improve my personal transparency with all decisions I make, and give a clear rational as to why I vote the way I do,” said Hershey. “The hardest part of the job, so far, is having to apply the laws of the state and following those when it contradicts public opinion.”
Bell said the city is increasing its use of social media to reach out to residents, and is revamping its website. The city is also in the process of hiring its first planner, who officials hope to have on board in the next 30 to 60 days.
Keyes takes office in January. His plan to handle a divided city includes asking the mayor and council to create opportunities for “informal and open discussions” with residents, much like town hall or open house meetings Boise and Meridian offer.
“One of my favorite quotes is, ‘You were born with two ears and one mouth for a reason,’” he said. “I think the first key is to be a good listener. That principle has always served me well and I intend to continue it in this role.”