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Comment letter submitted at the 9-16-2014 Huntsman Springs Hearing

September 16, 2014

Driggs City Council

60 North Main Street

Driggs, Idaho 83422

RE: Request for remand to follow proper procedure, substantive review, and public comments to the Sept 11, 2014 staff report

Dear City Council Members:

This letter addresses the September 11, 2014 staff report, which is the first publicly available assessment of the public comment and latest application materials.

Comments on staff recommendations regarding building height:

This property is zoned “Mixed Use Residential” (MUR) which prohibits any retail over 800+SF, resort hotels, residences over 2 stories, or a 66.6 foot tall buildings. The standard height limitation in the MUR zone is 35 feet. The entire premise behind the city’s recommendation to approve the new 4-story hotel up to a 54-foot maximum height on the east facing side is based on three faulty theories: (1) incorrect calculation of the building’s height, (2) misapplication of the 120% height exemption ordinance, (3) and a total lack of legal authority for granting height exemptions via the PUD ordinance.

The applicant’s requested height exemption cannot be granted for the following reasons:

REASON #1: Misapplication of the City’s own height standards:

The Driggs’ staff report recites: “the structure would have a walk-out “basement” (4 stories) on the west/golf course facing site of the hotel for a total height of 66.6’” The city’s building code has no definition of a “basement”, “daylight basement”, or “walk-out basement.” It is not a structure component with any legal meaning. However, within the city’s zoning code, height is defined as follows:

“Height, Building:  The vertical distance measured from the established curb level or existing terrain, whichever is higher, to the highest point of the coping of a flat roof, or to the deckline of a mansard roof, or to the mean height level between eaves and ridge for gable, hip or gambrel roofs.  Chimneys, spires, elevator penthouses, cooling towers and similar projections other than signs shall not be included in calculating building height.” (Driggs Code 9-1-5)

The city code further defines a “story” as:

“Story: That portion of a building included between the surface of any floor and the surface of the floor next above it, or if there be no floor above it, the space between such floor and the ceiling above it. A basement shall be counted as a story if its ceiling is over six feet (6’) above the average level of the finished ground surface adjoining the exterior walls of such story or it is used for business or dwelling purposes.” (Driggs Code 9-1-5)

Here, the city’s staff report measures from a hypothetical future “finished grade /curb line” — not from the existing terrain even though the staff report admits that “at least 3-4’ of excavation would be needed along the back side of the building.”   Additionally, it appears that the staff report measures the height from only the east-facing side, rather than taking in the mean of the total roof as required for roofs with gables. Because the design of the building would include commercially rented rooms on the bottom floor, this is by definition a “story”, making the hotel a 4-story structure. The applicant’s objective submission mandates a calculation of 66.6 feet in building height under the City’s ordinance.

Moreover, the staff report cites no authority for the maximum height determination to be “deferred to the subdivision review.” The proposed hotel structure is not permitted under the City’s existing rules.

REASON 2: The hotel lobby does not qualify for a 120% height exemption

The first justification provided in the city staff report for approving this height exemption states:

If the peak of the lobby facing the east/Hwy is reduced to 51’6” then is meets the 54’ height exemption maximum that is set for other areas and is a reasonable request and is supported. (Emphasis in original report.)

This conclusion grossly misapplies the city’s own zoning and height exemption regulations found in Driggs Ordinance 9-2D-2 (adopted in 2010). Also known as the “120% Height Exemption”, the ordinance specifically provides the following:

First off, the height maximum in the MUR zone is 35 feet — not 45 feet. Any 120 Height Exemption in this zone would be to 42 feet — not 54 feet. The applicant has not applied for a rezone from MUR to Mix Use Commercial (MUC) where 45 foot buildings are allowed. The height maximum is 35 feet, and the height absolutely cannot be adjusted via the PUD ordinance (as explained via REASON #3 below)

Secondly, the city’s own 120% Height Exemption is clearly and plainly limited to “building features such as church spires, belfries, cupolas, or domes, chimneys, ventilators, skylights, parapet walls, cornices, solar energy systems, elevators penthouses, or necessary mechanical appurtenances” that extend above the roof of the proposed structure. Here, the requested height exemption is for the peak height of the lobby of a four-story hotel – not including the chimney. This lobby and it’s roof height are clearly not a “building feature” but, rather, it is the principal part of the structure itself. Moreover, the staff report plainly states that this height measurement “does not include chimneys in the calculation of height” despite the fact that the lobby’s chimney is the only feature in this calculation that would qualify as a “building feature” for purposes of the 120 Height Exemption.

Third, the record does not contain any showing whatsoever of necessity for this height exemption in order for the building feature to properly function.

And finally, the feature(s) for which the 120% Height Exemption is invoked cannot itself exceed 20% of the building’s length. Here, the applicant and the staff have made no confirmation that the requested features is 20% or less of the building’s exterior wall. From a simple review of the drawings submitted by the applicant, the proposed exemption feature is roughly 50% of the building’s roof length. The 120% Height Exemption simply cannot apply to the proposed structure.

REASON 3: Driggs has no legal authority for granting a 66.6ft height exemption via the PUD ordinance:

With the unanimous Idaho Supreme Court decision in the recent case of Burns Holdings Inc. v. Teton County Board of County Commissioners, 2012 Op. No. 19 (January 25, 2012), Driggs was already once reprimanded for failure to follow and comply with the proper regulatory process for granting a deviation from the City’s height regulations. The court unanimously held that a Conditional Use Permit was improper and that a variance was in fact the proper and necessary process. After the Burns ruling, the Idaho Legislature quickly enacted HB. 691. The statement of purpose for this bill said that it “it clarifies that the Legislature intended the conditional use permit to be a process through which waivers or of exceptions to zoning standards could be permitted.”[1]

Thus, the Idaho Legislature amended the following language into I.C. § 67-6512:

“In addition to other processes permitted by this chapter, exception or waivers of standards, other than use, inclusive of the subject matter addressed by section 67-6516 [the variance statute], Idaho Code, in a zoning ordinance may be permitted through issuance of a special use permit or by administrated processes specified by ordinance, subject to such conditions as may be imposed pursuant to local ordinance drafted to implement subsection (d) of this section.” I.C. 67-6512 (effective July 1, 2012)

Driggs has both Conditional Use Permit and variance processes their books. (Driggs Code 9-2B and 9-2C respectively.) Both of these city ordinances reflect state statute. (I.C. §§ 67-6512 and 67-6516, respectively.) However, the city is choosing to forgo the notice, hearing, and evaluation criteria enumerated in all of these city ordinances and state statutes to instead apply the city’s PUD ordinance as the vehicle to expeditiously grant a height exemption. This PUD ordinance has remained unchanged since 2005. After the adoption of HB 691, no action was taken by the city to amend the PUD ordinance to effectuate the new I.C. § 67-6512 or adopt any other form of a local ordinance that would create another process for granting height exemptions in compliance with this new statute.

Furthermore, there is absolutely no language in the Driggs PUD ordinance “to implement subsection (d)” of I.C. § 67-6512, which reads as follows:

(d)  Upon the granting of a special use permit, conditions may be attached to a special use permit including, but not limited to, those:

(1)  Minimizing adverse impact on other development;

(2)  Controlling the sequence and timing of development;

(3)  Controlling the duration of development;

(4)  Assuring that development is maintained properly;

(5)  Designating the exact location and nature of development;

(6)  Requiring the provision for on-site or off-site public facilities or services;

(7)  Requiring more restrictive standards than those generally required in an ordinance;

(8)  Requiring mitigation of effects of the proposed development upon service delivery by any political subdivision, including school districts, providing services within the planning jurisdiction. I.C. 76-6512(d).

To the contrary, the language of subsection (d) has been, and continues to be found in the City’s own Conditional Use Permit ordinance (Ordinance 9-2B-5) which has remained un-changed since 2010. The city’s PUD ordinance is entirely silent on height, and the use exemption provisions in this section are entirely focused on just that – uses.  Thus, clearly, after the Burns Concrete decision, and after HB 691, the proper and only means by which a height of 66.6ft is to be presently granted in the MUC zone by the City (or any city zone for the matter) is either via the CUP or variance process. The City simply cannot proceed down the path of approving this height exemption via the PUD ordinance.

Comments on staff recommendations for second hotel site:

We respectfully caution this board against granting the additional use for a second hotel – a request that in fact will be a re-location of the existing permitted hotel as the applicant clearly has no stated intention[2] of building at the approved site –until they have provided an adequately detailed plan for mitigating the adverse impacts to the City of forsaking the first and original hotel site. In addition, this Board should consider the appropriateness of requiring any allowed commercial and excursion uses to be located in the area adjacent the Courthouse to recover for the City some of the benefits it would have obtained form the approved development in the MUC zone.

Comments on staff recommendations for commercial uses:

We will not repeat here our previously-submitted concerns that the requests for extensive commercial uses in the vicinity of the proposed re-located hotel conflict with the City’s Comprehensive Plan goal of supporting downtown Driggs’ recovery, will deprive the City of the benefits of integrating the Huntsman Springs development to the City, and will divert business form the downtown core.

However, as echoed in the near-unanimous public comment on the issue of the commercial plaza, we are very strongly opposed to the staff’s recommendations for the platting of thousands of feet of generalized commercial footprints with the sole future limitation that the uses be “guest oriented”. Time and time again, we have seen this type of limitation prove to be ineffective at curtailing commercial expansion in violation of the Comprehensive Plan. Consider the wide list of possible onsite activities:

  • Golfing
  • Tennis
  • Swimming
  • Fishing
  • Skiing
  • Skating
  • Exercise / Jogging / Yoga
  • Spa activities
  • Biking
  • Bird watching
  • Fine dining
  • Events in the amphitheater
  • A wide variety of conferences, weddings, and other gathering.
  • Furthermore, the stated plan is to also include shuttles that leave from onsite to other activities such as skiing, snowshoeing, horseback riding, etc.

Once commercial uses are platted – even as just stalls – the door has been opened to a wide range of potential commercial uses. There is absolutely no need (nor public desire) for the city to entitle commercial uses at this time, which will indeed prove nearly impossible to corral once this entitlement has been granted. All commercial should be denied. The applicant is always certainly free to apply for commercial uses to be considered at a later date when they are ready to use them.

Comments on staff recommendations for pathways:

“Future private pathway” to 2500N should be identified as future public pathways.

General comment on public outreach to date:

We have expressed, and continue to express grave concerns with the constantly-changing nature and timing of public outreach to-date. For example, no documents other than the draft master sketch plan — a plan that did not fairly identify the goals of the application and its impacts on the City — were made available to the public for the August 13th Planning & Zoning. Our staff repeatedly requested such documents, and they were not provided until just two days before the hearing on August 11th which was long after the public comment deadline of August 5th. The applicant has continuously submitted changing plans, such as the building site plans and architectural plans. While the P&Z acknowledged at their August 13th that important information was missing from the record[3] and that the staff and Commission had not identified potential conditions that should be required if these uses were to be approved, they passed the application on.

Even for tonight’s hearing, the park exchange and city walk proposed have now been withdrawn on short notice. Furthermore, our staff and Board members have been individually contacted by Mayor Johnson who has affirmed to each of them that has had several ex parte meetings with the applicant, their representatives, and attorneys, to negotiate and finalize plans for this development which have not been made public. He has further emphasized the city’s entrenchment on these quasi-judicial issues and that public comment on publicly-noticed topics such as the height exemption should be discouraged from his perspective as a moot point.

We encourage this Council to approach this incredibly complex and high-impact land use proposal with an abundance of caution and attention to detail, realizing that all decisions on this application do not need to be made (and probably should not be made) in just one evening of hearings. We also believe that appropriate conditions should have been discussed and recommended by the City of Driggs’ Planning & Zoning Commission (P&Z) at their August 13, 2014 hearing. The P&Z simply needed more time and information to do its work. We encourage the City Council to consider remanding the application to P&Z for continued review.

            For all of the above stated reasons, we ask the City to remand this hearing back to the Planning & Zoning Commission to follow proper city and statutory procedure.

Thank you for the opportunity to submit these comments.


        /S/ David Axelrod


David Axelrod

Valley Advocates for Responsible Development

Board President

[1] Statement of purpose for RS21549.

[2] At the August 13th, 2014 Driggs Planning & Zoning Commission hearing, Commissioner Rick Baldwin asked, “What is the future for the additional hotel site?” Huntsman Springs’s consultant representative from Panorama International responded: “I would say, who knows? Maybe in 10-15 years there may be a need for small boutique hotel. We’ve got 300 [rooms] on the books. I don’t know. We can’t predict that. I know the use isn’t going to be there for a long time.” August 13, 2014 Driggs Planning & Zoning Commission hearing audio tape number 2.

[3] At their August 13, 2014 hearing, the Driggs Planning & Zoning Commissioners noted that the following was missing from the applicant’s submissions: information on the proposed commercial use exemptions, accurate renderings showing the height of the proposed lobby, a completed pathways plan, and visual renderings of the hotel from Highway 33. They also expressed concern that absolutely no public input had been received prior to the hearing.

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