December 12, 2017
Victor Planning & Zoning Commission
Victor City Hall
PO Box 122
Victor, Idaho 83455
RE: Fenn Concept Plan
Thank you for your thoughtful review of the Fenn Re-Zone Map Amendment application on November 21. This Commission was placed in a tough situation, and our organization believes you made the best decision possible given the complicated circumstances.
At this time however, please table this Concept Plan application in accordance with the City’s code until staff have received a complete application AND City Council has approved the Re-Zone Map Amendment with the appurtenant development agreement. Because the City Council has yet to approve the rezone associated with this application per city ordinances, and because the Concept Plan application is so profoundly incomplete, the prudent path forward is to table this request until the rezone and development agreement are complete.
SUMMARY OF THIS COMMISSION’S PRIOR ACTION
The official minutes are not yet available. However, having attended the November 21, 2017 hearing, our understanding is that the unanimously recommended conditions of approval by this Commission for the Fenn Re-Zone Map Amendment require the applicant to now submit:
1. A phasing plan.
2. A traffic study.
3. Approval of the design and architecture of the entire project.
4. A table of proposed uses for each element of the project.
5. CCR’s approved by the city.
6. Increase the RM1 zoning and decreasing IX zoning.
7. Limit commercial development at the north end of the project.
At the hearing, the applicant accepted these conditions of approval and did not protest. He did so with the knowledge that an official development agreement would be negotiated with the City Council to ensure these conditions were met.
Review and possible approval of this incomplete Concept Plan is premature. It also does not comply with the Planning & Zoning Commission’s conditions of approval, nor does it conform to Section 14.6.5 of the Victor Land Use Development Code for the following 4 reasons:
REASON #1 – “Concurrent Review” still requires noticing and a decision on the rezone.
Victor’s code prohibits this Commission from making a decision on this Concept Plan application until the noticing for the City Council’s public hearing and decision on the applicant’s pending application has run its course. Section 14.6.5 Concurrent Review Allowed states that:
“Multiple applications by one applicant may occur at the same time, including- rezones, conditional use permits and/or building permits. However, if a public hearing is required for a separate approval, noticing for that public hearing shall not be made prior to receiving recommendations from the recommending approving body, as outlined in Idaho Code 67-6509 (b) regarding the noticing for public hearings.”
Also, “concurrent review” permitted by Section 14.6.5 only applies to applications that are reviewed and for a which a decision is rendered at the same time. There is no definition of “concurrent” or “concurrent review” in Victor’s code, but Black’s Law Dictionary defines “concurrent” as “agreeing in the same act or opinion” and “operating on the same subject.”
The intent of Section 14.6.5 is to allow for the review and decision of an application simultaneously. Here, this Commission is being asked to make non-concurrent decisions on purportedly concurrent applications. This is procedurally flawed.
REASON #2 – “Concurrent Review” is entirely discretionary per the City’s code.
It is well established in the Common Law and also the Idaho Local Land Use Act that the usage of “may” in statutory construction is permissive whereas the usage of “shall” is mandatory. Here Section 14.6.5 clearly states:
“multiple applications by one applicant may occur at the same time, including- rezones, conditional use permits and/or building permits.”
The City of Victor has discretion in permitting concurrent review, and is within its legal authority to not permit concurrent review. The Fenn project is large in both scale and impacts – which this Commission clearly intended to mitigate through a comprehensive development agreement. Thus, concurrent review should not be permissively granted here.
REASON #3 – This Concept Plan is profoundly incomplete per the City’s own ordinances.
This Concept Plan contains no information about infrastructure, open space (of which public space is likely a product of the design aspect of the required development agreement), or public improvements (which, again, may be necessary if dictated by the required traffic study). Section 14-5-10-B-2-d [Concept Plan] Application requires that:
“[the applicant shall provide a] Concept Plan that depicts: 1) Lots; 2) Infrastructure; 3) Open Space; 4) Public Improvements.”
Furthermore, prior to any hearing, these submittals are subject to a “Completeness Determination” per Section 14-3-2-C which clearly places the burden of proof on the applicant:
“An application is considered complete when it contains all of the information necessary to decide whether or not the application will comply with all of applicable requirements of this Code. The burden of proof to show that their application is complete and responsive to the requirements of this Code is on the applicant.”
All of these key materials are missing from the current application, rendering it woefully incomplete for adequate review by this Commission.
REASON #4 – Approval of the Concept Plan prior to the development agreement is impractical, if not impossible.
Review of the Concept Plan, cannot be undertaken when the agreed-upon development agreement is not completed for the following reasons:
Phasing & Public Improvements: The Concept Plan includes no information about how the project will be phased, particularly when and how the necessary infrastructure and public improvements will be implemented.
Traffic Study: The Concept Plan includes no information from the required traffic study, particularly the Larkspur/500 W/Hwy 33/Hwy 33 Pathway intersections that are proposed to serve the project. This study is necessary; without it, this Commission cannot determine if the existing road infrastructure can serve this large-scale development or what improvements are necessary. For example, will a traffic signal, turning lane, or roundabout be necessary? If so, who will pay for them? These are fundamental concerns that affect Concept Plan review; without the benefit of the required traffic study, this Commission is unable to identify fatal flaws with regard to conformance with Victor’s code and Comp Plan. Also, we are unaware of any official review by the Idaho Transportation Department (ITD).
Design Elements: The Concept Plan includes no information about building, landscaping, streetscape, public space, or other design elements of the project. Each design element is interrelated, and a proper design process (which we believe is the intent of this Commission’s conditions) cannot occur without a complete, holistic design review process. Approval of the Concept Plan outside of the development agreement will unduly constrain the design process that was to be included in development agreement negotiations.
Because the City Council has yet to approve the rezone associated with this application, and because the Concept Plan application is so profoundly incomplete, we recommend the Planning & Zoning Commission table this Concept Plan to a future date.
Shawn W. Hill
Executive Director, Valley Advocates for Responsible Development