City Council

City Council Chambers in the City Annex Building located at 680 Park Avenue in Idaho Falls City Council Meeting Minutes November 22, 2022 Thursday, November 22, 2022 7:30 PM City Council Chambers 1. Call to Order Present: Mayor Rebecca L Noah Casper, Council President Michelle Ziel-Dingman, Councilor Radford, Councilor Hally, Councilor Freeman, Councilor Francis; and Councilor Burtenshaw Also present: All available Department Directors Michael Kirkham, Assistant City Attorney Jasmine Marroquin, Deputy City Clerk 2. Pledge of Allegiance Councilor Burtenshaw led those present in the Pledge of Allegiance. Mayor Casper directed some order changes to the agenda due to continued software glitches. Mayor Casper added (D) Municipal Services and renumbered the items following Municipal Services. 3. Public Comment Laura Bordeleau lives in Idaho Falls. Ms. Bordeleau does services for Children’s mental health including day treatment and community-based rehab. Ms. Bordeleau is an intern studying to be a social worker. Ms. Bordeleau is advocating for increased funding for children’s mental health services as well as increased funding for substance abuse. Ms. Bordeleau stated that it is a huge problem in the City with fentanyl use and deaths. She is asking for the City’s help in funding as it would benefit those services, especially children’s health. It was moved by Council President Dingman, seconded by Councilor Freeman to Remove 5A1 Approval Related to Airport with the good faith reason that Council made that decision in a work session on November 21, 2022; renumbering and organization of agenda; remove 6 (which would be 5 after renumbering) executive session, and remove 7A1 (which would be 6A1 after renumbering) related to settlement; and moving the item related to Mayors authority E1 confirming Mayors authority to accept donations, The motion carried by the following vote: Aye – Burtenshaw, Hally, Radford, Dingman, Freeman, Francis. Nay – None 4. Consent Agenda A. Office of the Mayor 1) Appointments to City Boards, Committees and Commissions 2) Art Objects & Cultural Items Collection Loan Request Form B. Public Works 1) Resolution to Adopt a Revised Snow and Ice Control Policies and Procedures Manual 2) Iona Bonneville Sewer District (IBSD) - Request for Sewer Service Area Expansion C. Idaho Falls Power City Council Meeting Minutes November 22, 2022 1) IFP 23-05 Meter Inventory for Idaho Falls Power 2) IFP 23-08 York Substation Relays and Racking D. Municipal Services 1) Bid IF-25-03 Main Line Materials for State Projects 2) Bid IF-23-05 Steel Refuse Containers – 30 yards 3) Treasurer’s Report for September 2022 4) License Applications all carrying required approvals It was moved by president Ziel -Dingman, seconded by Councilor Radford to approve, accept, or receive all items on the Consent Agenda according to the recommendations presented. The motion carried by the following vote: Aye – Councilors Hally, Burtenshaw, Dingman, Freeman, Francis, Radford. Nay –None 5. Regular Agenda A. Fire Department 1) Bingham County Ambulance Service Agreement Chief Nelson stated he is presenting a renewal of an agreement for Advanced Life Support Transport Services with Bingham County. He stated this is a decades old agreement, and this is a 1-year renewal in the amount of $102, 047.00 to cover the cost of transport services in the portion of Bingham County where they do transport for injured people. Chief Nelson indicated it is an increase of just under 3%. It was moved by Councilor Freeman, seconded by Councilor President Dingman to Approve the Ambulance Service Agreement between the City and Bonneville County and give authorization for the Mayor and Deputy City Clerk to sign necessary documents The motion carried by the following vote: Aye- Francis, Dingman, Freeman, Hally, Radford, Burtenshaw. Nay – None B. Public Works 1) Professional Services Agreement with Forsgren Associates, Inc., for widening of the Idaho Canal Bridge at the 17th Street and Holmes Avenue Intersection Director Fredrickson stated that this is to widen the Idaho Canal Bridge at the 17th Street and Holmes Ave., intersection, and the reasoning for this project, is that it was approved for ARPA funding to establish a right turn bay to accommodate traffic on 17th Street east bound traffic turning onto Holmes. Director Fredrickson stated that it is the most needed traffic improvement in the town currently. Director Fredrickson stated that the bridge would need to be extended on the north side over the Idaho Canal and leave the curb line on the south line to minimize impact on right of ways and gain the needed improvements. Cost is $84,839, and the work is anticipated to be completed in 6 weeks once approved. Director Fredrickson stated that the pedestrian refuge island would go away, and the proposed analysis shows the intersection improvement would move the curb line further out into Holmes Ave., right of way and take out the pedestrian refuge island. He stated that it would increase the safety of the turning movement and provide additional pedestrian accommodations to utilize the canal pathway that begins north of here on the Idaho Canal. Director Fredrickson stated that Public Works had sought funding for this improvement for some time through Federal funding and other grant opportunities, and they have not been successful on the grant applications in the past. Director Fredrickson stated they did submit it for ARPA with the description that they had tried every other avenue. Councilor Burtenshaw added that City Council Meeting Minutes November 22, 2022 originally, they were asking for $3 million for this project, and they offered to take less on the project and work through it, which was helpful to the overall ARPA funding of more projects. Director Fredrickson stated there were compromises associated with that, and they will continue to seek other funding opportunities as they become available, but the ARPA funding allocated for this project was three quarters of a million. Director Fredrickson stated this is anticipated to take 6 months to do the design, the bridge extension would happen 1 year from now, and then the intersection would follow. It was moved by Council Burtenshaw, seconded by Councilor Hally to Approve the Professional Services Agreement with Forsgren Associates, Inc., and authorize the Mayor and City Clerk to execute the document. The motion carried by the following vote: Aye – Councilors Hally, Francis, Radford, Dingman, Burtenshaw, Freeman. Nay – None 2) Bid Award - Well 3 Elevated Tank Director Fredrickson stated that they have been working on this project for some time and they have a lot of public interest in this project and the overall cost. Director Fredrickson stated they opened bids on November 10 for this project and the City received 2 bids from the 4 prequalified contractors that had gone through the process for the prequalification needs. The low bid was from Phoenix Fabricators Erectors, LLC in the amount of $8,936.00, which was $734,000 lower than the second bid received, and the engineer’s estimate was for $9,174,000. Staff has conferred with a design consultant and discussed a bid award and recommended the bid received. If awarded a notice to proceed would be issued as soon as practical, and a preconstruction meeting would be scheduled, once preconstruction meeting is held, they can talk about time frame, and start the public involvement process to make sure everyone is aware when the construction will start and what will be expected. The bid project schedule includes a substantial completion date of September 24, 2024, with final completion required by October 15, 2024. Director Fredrickson stated that once this tank is up and running, they would bid for the removal of the tank, with earliest date being October 2024. It was moved by Councilor Hally, seconded by Councilor Burtenshaw Approve the plans and specifications, award to the lowest responsive, responsible bidder, Phoenix Fabricators and Erectors, LLC, in an amount of $8,936,000.00 and give authorization for the Mayor and Deputy City Clerk to execute the necessary documents. The motion carried by the following vote: Aye – Dingman, Burtenshaw, Francis, Freeman, Hally, Radford. Nay – None C. Idaho Falls Power 1) OEMR Energy Resiliency Grant Program - Idaho Falls Downtown Constitution Alley Idaho Falls historic downtown has three remaining alleys with overhead power lines. These lines present unique operational and aesthetic issues. This infrastructure is difficult and costly to upgrade and underground due to limited workspace in downtown alleyways. IFP secured a grant through OEMR to reimburse 50% of the cost for underground power lines between Constitution and B Street alley. Mayor Casper stated that Idaho Falls Historic has 3 H structures remaining and will this take care of all 3. Director Prairie stated that this takes care of 1. It was moved by Councilor Radford, seconded by Councilor Freeman Approve the Idaho Falls Downtown Constitution Alley electrical services underground project for a total cost of $750,000.00, approve the Idaho Office of Energy and Mineral Resources (OEMR) Energy Resiliency Grant Program Rebate Agreement which reimburses the city for $375,000.00, and give authorization for the Mayor and City City Council Meeting Minutes November 22, 2022 Clerk to execute the necessary documents. The motion carried by the following vote: Aye – Freeman, Radford, Burtenshaw, Francis, Dingman, Hally. Nay – None 1) South Fork Archers Lease Agreement Director Prairie stated that the South Fork Archers have been utilizing this property for years with a prior agreement with Parks and Recreation on property that is going to be a future substation sight for Sand Creek Substation. Director Prairie stated that in the meantime the archers needed a location to do activities, and Director Prairie worked with them to find a win/win that benefited the community and Idaho Falls Power. Director Prairie stated that within the agreement they have come to terms that they will maintain the property to save the City money and maintenance on upkeep; and they are required to have public hours on the weekends to allow others in the community to shoot on the weekend. Councilor Dingman asked why they settled on 4 years for the term. Director Prairie stated that it is not too long not too short, and 4 years they could break ground on future substation. It was moved by Councilor Freeman, seconded by Councilor Radford Approve the South Fork Archers, Inc. Lease Agreement for real property at the future Sand Creek Substation site and give authorization to the Mayor and City Clerk to execute the necessary documents. The motion carried by the following vote: Aye – Burtenshaw, Hally, Dingman, Radford, Freeman, Francis. Nay – None D. Community Development Services 1) Quasi-Judicial Public Hearing - Planned Unit Development (PUD) and Reasoned Statement of Relevant Criteria and Standards, Bentley Townhomes. Mayor Casper opened the public hearing for PUD on Bentley Townhomes and ordered all items presented to part of the official record. Applicant: Barry Bane, Connect Engineering, 2295 N. Yellowstone, Idaho Falls, Idaho. Mr. Bane presented a PUD for Bentley Townhomes. Slide 1 – aerial Mr. Bane showed the property is located east of Woodruff and south of Lincoln. He indicated that a preliminary plat for the entire area had continuation of Bentley and then included this lot that is 8.5 acres with proposed 25 buildings and each building would have 4 townhomes, for a total of 100 townhomes in the PUD. Each townhome is individually platted and can be sold individually, which is the main purpose for bringing this PUD. Mr. Bane stated that they are not seeking variances from PUD code or R3A zone. He said that they have met all codes and requirements. Mr. Bane stated that part of the requirements is the 25% common space that they have throughout the site, multiple amenities, 2 required, and they are proposing 3 or 4 with a playground, picnic areas, etc. throughout the site. Mr. Bane stated that they are planning 3 separate phases beginning on the east side to incorporate a natural hammer head turn around, middle is phase 2, west is phase 3. Mr. Bane stated that they have talked to the fire department, and this area only has 1 access to it off Bentley, until Quail Drive continues down from Lincoln. Mr. Bane showed that there is a note that states that if there isn’t 2 access to the site before more than 30 units are built, the units will be fire suppressed, or they must have a second access. Mayor Casper asked if it is 29 homes and then 30 makes 2 Access points required, or 31, and then they require 2 access points. Mr. Bane was unsure if it was 30 + or up to 30. Mr. Bane tells clients up to 29. He said the first phase is 28 units, they do have 13 guest stalls, 10% landscape islands for the requirement. Mr. Bane stated that R3A allows 35 units per acre, and they are at 11 units per acre. He said they worked with engineering and Public Works on the PUD and Bentley Way. Bentley will be constructed prior to this, as they have worked with engineering and Public Works. Councilor Francis asked about the lack of trees on the south and east side. Mr. Bane stated that the main reason is it is required on the west (commercial requires landscape buffer) and north side (along public street required buffer). Mr. Bane stated it would be difficult on the east side as City Council Meeting Minutes November 22, 2022 there is a feeder ditch for irrigation, and a strip that provides City of Idaho Falls Power 30’ power easement along there and the other side of the easement is Crow Creek Canal, and no trees could be possible on the east side. He said the south side has a lot of landscape, and the lot stops short of the canal, and there is a piece of canal property, and the room there is open, and trees were not needed to obscure anything. Mr. Bane stated that without a PUD they could not plat to individual ownership, and they want to be able to sell, not just rent. He said they did follow the minimum 2 parking per unit on this PUD, and he feels that this PUD could have a higher unit per acre if they could lessen the parking and there would be more availability for housing. Bane added that in this PUD the 10% landscape island breaks up the parking, but that is a constraint on the PUD, but that wouldn’t change with the PUD vs R3A, as it is just a requirement. Community Development Services Director Brad Cramer stated the applicant covered all details and that the PUD does comply with the requirements. Slide 6 – Proposed Elevation Director Cramer showed the Townhomes with 4 units per building. Slide 7– site view Director Cramer showed that the property is undeveloped. Director Cramer showed the Meppen Canal Trail that has a Federal Grant that will pay for this for a number of years. Director Cramer showed the PUD site to the south side of the Meppen Canal, and the property line ends shy of the canal and the canal company owns the parcel, and it is not an easement. Director Cramer stated that when they talked about what can be done, maybe a bridge or a pathway that would connect around the east side down the canal, it is contingent upon canal company approval, and a condition on the PUD to require a bridge, or something else, would be a condition upon another property owner’s approval, which is not an appropriate condition. Slide 9 – street view looking north from Kearney. Director Cramer showed that if there was a stub path it could connect (pending canal company approval) with the access road, which would get the pathway to the sidewalk on Kearney and then cross the bridge and connect north or south to the pathway. Slide 10 site photo looking east. Showing 2 car dealerships and shows site behind the right dealership. Also shows the canal and where the pathway is intended to be on the south side. Director Cramer stated that Planning and Zoning recommended approval. Director Cramer stated that the inability to plat the individual lots is a product of the Subdivision and Zoning Codes as a residential lot must have frontage on and access to a public street, and these units front a parking lot, or private street. Director Cramer stated that the guest parking stalls are not required by the Code as they met the 2 stalls per unit, and the 10% parking lot landscaping is required when there are more than 24 stalls. Councilor Francis asked about the connection stub for a pathway and requiring a connection stub on the southeast corner. Director Cramer stated that there is nexus between that requirement and the City’s plans to connect and the southeast corner is the most logical place. Councilor Francis confirmed that requirement would require an amendment to the motion and RSRCS. No one appeared in support or opposition. Mayor Casper closed the public hearing. It was moved by Councilor Francis, seconded by Councilor Burtenshaw Approve the Planned Unit Development for Bentley Townhomes as amended to include an extension of sidewalk on the southeast corner to the southern property line with the exception that PUD will. The motion carried by the following vote: Aye – Hally, Radford, Francis, Dingman, Burtenshaw, Freeman. Nay – None It was moved by Councilor Francis, seconded by Councilor Burtenshaw to amend the Reasoned Statement of Relevant Criteria to include the statement extending the sidewalk on the southeast corner to the southern end of the property Amending roman numeral 1 to add a new line 6 changing the numbering 6 through 12 all down 1. Amending Roman numeral 2 adding the statement requiring the extension of the sidewalk on the southeast corner to the southern border. Line number 6 will start with the wording “PUD will include”. The motion carried by the following vote: Aye – Francis, Dingman, Freeman, Hally, Radford, Burtenshaw. Nay – None City Council Meeting Minutes November 22, 2022 It was moved by Councilor Francis, seconded by Councilor Burtenshaw Approve the Reasoned Statement of Relevant Criteria and Standards as amended for the Planned Unit Development for Bentley Townhomes and give authorization for the Mayor to execute the necessary documents. The motion carried by the following vote: Aye – Dingman, Radford, Francis, Burtenshaw, Hally, Freeman. Nay – None E. Municipal Services 1) Impact Fee Appeal – Fall Creek Homes Mayor Casper opened the Hearing for Impact Fee Appeal and indicated that they would be flexible and informal, but asked for the hearing to be orderly, and asked Council Members to be directed through the Chair for attention, and go one at a time, and asked Appellant to address the Chair for direction. Mayor Casper presented that City Code Title 10, Chapter 8, Section 10 A2 and A4 are reasons for appeal. (1) To appeal the decision to charge an impact fee for a development; (2) Seeking refund of fees paid. Mayor Casper indicated that they will first hear from Appellant; then Impact Fee Administrator and any other City representatives; and back to appellant for rebuttal. Throughout they will facilitate Council questions. Appellant: Ryan Jacobsen appeared on behalf of Fall Creek Homes. Also present is Brad Pickett, Developer of Southpoint Subdivision. Mr. Jacobsen stated that this appeal has been difficult for Fall Creek Homes because Fall Creek Homes works daily with City representatives on developments and they want to maintain good working relationships. Mr. Jacobsen wants to focus on specific issues and concerns on 13 lots in the Southpoint Subdivision, Division 11. He said the facts are straight forward and no questions. Mr. Jacobsen stated that Division 11 of Southpoint Final Plat was recorded on April 22, 2022, and on May 9, 2022, Fall Creek Homes applications for building permits were accepted for processing shown on the City’s eTrackit System, for 13 lots in the division. On May 12 of this year the City adopted its fee schedule for developing impact fees, and June 1, 2022, the impact fee schedule took effect. In August Fall Creek was invoiced for building permit applications to pay fees and the development impact fee was included on that invoice on the 13 lots. Jacobsen stated that those are undisputed facts. Mr. Jacobsen stated that he has included in the appeal email correspondence between himself and City representatives. Mr. Jacobsen stated that in an email dated August 16, 2022, from Chris Canfield, Jacobsen read “Impact fees are applicable at the time of the building permit issuance.” On August 16, 2022, an email from Brad Cramer, Jacobsen read “If the applications came in after May 1, 2022, and the permits were issued by June 1, 2022, then the fees do not apply.” Jacobsen stated that the City is basing the assessment of the development impact fee on date of issuance on the building permits and were the building permits issued before the effective date of the impact fee or not. Mr. Jacobsen stated there was additional email correspondence, and there was a reference of miscommunication and a lot of confusion on the part of the City making certain representations to Fall Creek Homes about deadlines and whether impact fees would be assessed. The City’s position on that from Brad Cramer was first an acknowledgment and an apology in an email dated August 17 from Brad Cramer, Jacobsen read “We also recognize that the City had some incorrect messaging on this early on, and we tried to rectify, but obviously didn’t catch everyone.” Mr. Jacobsen read from another email correspondence later the same day between himself and Brad Cramer, “I’m sorry for the confusion caused during the roll out process.” Mr. Jacobsen is concerned with the assessment of the impact fees on these lots due to the confusion of the roll out process. Mr. Jacobsen stated that the Fall Creek Homes administrative assistant and Mr. Jacobsen had multiple conversations with various City representatives and they at every contact, they were sure to confirm whether development impact fees would be applied towards the 13 lots in Division 11. Mr. Jacobsen stated that one City representative called Mr. Jacobsen to say the City is not able to issue the building permits right now because there is one item remaining to be done in the division, and Mr. Jacobsen asked if this would affect us on impact City Council Meeting Minutes November 22, 2022 fees, and the response was no, you have filed an application for building permits and should not be affected. Jacobsen stated that was the first time that he knew that they weren’t going to issue permits on the 13 lots. Mr. Jacobsen stated that he immediately contacted Brad Pickett, the developer, and told him he just became aware that the development is not ready and asked what is going on. Mr. Jacobsen and Mr. Pickett discussed whether they need to be concerned with respect to the impact fee, and he told him No, that the information he received from the City was no. Mr. Jacobsen stated that this happened during the month of May, and the City’s position has been that the development wasn’t ready by June 1, to issue a building permit. Council President Dingman asked what piece of the application was missing. Mr. Jacobsen stated that there was nothing missing. Mayor Casper asked what the substance of the phone call was. Mr. Jacobsen stated that the phone call was saying that their application was complete, but the City had contacted him saying that there was one sewer line that had not been connected, but the application was complete, accepted, and in the processing period by the City. Mr. Jacobsen stated that in discussions with David Burt, Mr. Burt stated the permits were ready to issue prior to June 1, but the City had held off on tying in a sewer line. Mayor Casper asked the date of the phone call. Mr. Jacobsen stated between May 9, and prior to June 1. Mr. Jacobsen stated his conversation with Mr. Pickett after the call with the City was to say this needs to be taken care of, and Pickett asked if they need to worry about impact fees, as that was on everyone’s mind during the roll out. Mr. Jacobsen again told Mr. Pickett, no, because they had submitted their application. Mr. Jacobsen stated that had at any time a City representative told them that they are basing it off the date of issuance, and you will pay impact fees if the permit is not issued before June 1, Fall Creek would have done whatever it took to get it done. Mr. Jacobsen stated that if Mr. Pickett would have known that the impact fees would have been accessed if the building permits had not been issued. The City claims they were waiting on a bond to guarantee that the final sewer line would be completed, and Mr. Pickett stated that he would have taken a blank check to the City to file the bond that day. Mr. Jacobsen stated that the bond was set and paid on June 22, and that is part of the City’s argument saying that Fall Creek should pay impact fees on the 13 lots because the bond wasn’t paid until June 22. Mr. Jacobsen reiterated that if they had known the City’s position was to go on issuance date, they would have taken care of that. Mr. Jacobsen stated that they feel it is unfair to hold them responsible to pay the impact fees on these lots, when there is misinformation and confusion that had been acknowledged by Brad Cramer (incorrect messaging). Mr. Jacobsen believes that Fall Creek Homes should not be damaged as they relied on the incorrect messaging that was given. Mr. Jacobsen stated that they are concerned about the City’s position on the assessment of impact fees being based on the date of issuance, rather than the date of filing the application, and that position is contrary to the City’s Ordinance and Idaho Law. Mr. Jacobsen stated that the City Ordinance 10-8-2 dealing with authority, applicability, and Effective Date (d) states “Applications for building permits received by the City prior to the effective date of this chapter, or amendments to this chapter adopting impact fees or amending or adopting any methodology by which impact fees are calculated, shall be exempt from that portion of this chapter. Mr. Jacobsen quoted this language in email correspondence to the City asking why the fees were being assessed, and the response was that the language doesn’t apply here because the City adopted its fee schedule in a separate resolution. So, the specific language in the ordinance says applications for buildings permits received by the City prior to the effective date of this chapter, or amendments to this chapter, and the argument and the position of the City was the fee schedule was not an amendment but done separately. Mr. Jacobsen asked the Council to imagine that instead of passing the resolution, the Council had amended the Ordinance. Mr. Jacobsen feels that this language should be applied even though the Council adopted this in a separate resolution. Mr. Jacobsen stated that when they look at Idaho Law, governing the development impact fee ordinance, part of that Idaho Statute 67-8204 (17) “A development impact fee ordinance shall include a schedule of development impact fees for various land uses per unit of development. Idaho Statute requires a fee schedule, and Mr. Jacobsen raised that issue City Council Meeting Minutes November 22, 2022 at the hearing when the impact fee ordinance was approved. Mr. Jacobsen stated that there is still no Impact Fee Schedule set forth in the Ordinance and so it appears that the City is skirting around the language or the Ordinance by saying that this wasn’t an amendment, so this language doesn’t apply, but it is clear from the Ordinance that when applications for a building permit are received prior to the effective date of the impact fees, then it is exempt. Mr. Jacobsen feels the language is in the Ordinance because Idaho Law requires it. Mr. Jacobsen sited case law in his appeal memo, and as late as 2021 Idaho Supreme Court has reiterated that an applicant for building permits rights are determined by the Ordinance in existence at the time of filing an application for permit (Southfork Coalition v. Board of Commissioners of Bonneville County) Mr. Jacobsen asked Council to look at the date of the application for the permit was filed, and what is the effective date of the development impact fee, and that analysis will show through eTrackit that on May 9 the applications for building permits were submitted, accepted for processing, and at that time no fee schedule was in existence, because it was passed May 12, and effective June 1. Jacobsen feels it is legally impermissible for the 13 lots that were filed for prior to the effective date for them to be assessed an impact fee. Mr. Jacobsen will give Brad Pickett the floor to give his concerns. Councilor Francis asked about an email that Jacobsen wrote that was included in the packet, there was referenced to an attempt to file April 29, and eTrackit wasn’t working, how does that fit into the argument, and did you file on May 2. Jacobsen stated that for purposes of the appeal and this hearing, he feels that eTrackit is undisputed so that is what he is arguing, but they did attempt at the end of April to submit the application. Mr. Jacobsen’s administrative assistant tried to submit the application on April 29 and called the City and was told it’s ok you have until June 1, and that is one of the points of miscommunication and incorrect messaging. Councilor Hally asked if the whole issue is when an application is approved. Mr. Jacobsen clarified it is when an application is filed, and quoted Idaho Supreme Court “An applicant’s rights are determined by the ordinance in existence at the time of filing for the permit.” Brad Pickett, 5286 Trading Drive, Idaho Falls, Developer on South Point Division 11. Mr. Pickett stated that the process of approval and development gets gray. Mr. Pickett stated that the plat gets approved, recorded, and then they work with engineers (City and developers), contractors, and to make sure everything is done moving forward. Pickett stated that this division had a storm drain missed by both Engineers from a previous division years ago, that needed to attach to Division 11 that was out in the middle of a field. Mr. Pickett stated that the first he heard about it was in April when they told him that this storm needs to be connected to Division 11 storm to continue to the pond. Mr. Pickett stated that he was advised that the storm pond needed to be connected to move on. Mr. Pickett stated that when this happens and something is not completed, then the contractor or developer will provide a bond to guarantee it will get done. Mr. Pickett stated that they worked with the City engineers to determine the bond, and from the day of recording, they were working, and it takes a while to determine the amount of a cash bond. Brad Pickett does cash bonds on other divisions, like Division 10 he has $50,000 that the City is holding. Pickett stated that during this process as the impact fees are rolling out there was confusion. Pickett knows the City will not issue the permits until they have the cash bond. Pickett stated that in this case, when he knew they were turning things in, the dates were confusing on the roll out. Pickett stated that he was unconcerned to get the amount determined to get a check to the City by June 1, and had he known, he would have doubled the amount that was estimated and would have paid the cash bond earlier. Mr. Pickett stated that he was under the assumption that permits were turned in, and when they were not issuing the permits, he asked about the impact fee, and he didn’t worry about it. Mr. Pickett stated that he was not concerned because his development agreement pays the impact fees on this division. Mr. Pickett stated that he has a signed development agreement from March 29, that the impact fees on this division were paid. Mr. Pickett assumed that the development agreement covered the impact fees, and they wouldn’t go after the builders for the impact fees on this development. Mr. Pickett doesn’t feel legally they can double dip and that is what the City City Council Meeting Minutes November 22, 2022 would be requiring by requiring Pickett to pay the impact fees, and then turning around and asking the builder to pay the impact fees on that division. Mr. Pickett understands divisions moving forward his impact fees are not on that. Mr. Pickett feels this is a clear appeal and he is not complaining about future fees, but on this fee on this division, there are some legal issues. Mr. Pickett stated that the impact fees and fees being attached to the ordinance, he had 3 attorneys look at that and there are developers chasing that, and he feels it is not legal currently because the resolution Is not attached to the ordinance. Mr. Pickett urged the Council to quickly amend that. Mr. Jacobsen recognizes this is the first appeal hearing that it has had, but it is factual that this hearing today is late under the City’s impact fee ordinance, as the appeal was submitted on September 2, and the City’s Ordinance states that they shall be provided a hearing within 30 days of the appeal. Mr. Jacobsen stated that they did submit a letter to the clerk and Ms. Alexander indicating that it was late. Mr. Jacobsen feels it continues to go towards the confusion on the roll out. Mr. Jacobsen stated that there was so much incorrect messaging going on, and there should be some grace. Mr. Jacobsen stated that since they didn’t get the appeal hearing within 30 days, there are due process concerns and this body could find that because they are outside of the prescribed time period, they can grant the appeal on that basis. Assistant attorney Michael Kirkham is representing Fee Administrator, as it makes sense to have one central person highlight what is going on, but they do have everyone that has been involved present and they are prepared to provide, if needed, as much in-depth information as the Council desires. Mr. Kirkham presented Slide 1 - What date did Fall Creek Homes submit a complete building permit application to the City. Mr. Kirkham feels that the Appellant and the City agree on the law, on a lot of the facts, but the main disagreement is what constitutes a complete building permit, and when that complete building permit, in this case, was filed. If there was a complete building permit application filed before June 1, then Council should refund the fee, but if it was complete after June 1, then Fall Creek Homes was obligated to pay the fee, and Council should deny the appeal. Mr. Kirkham wanted to address the statements made that the Ordinance is invalid in its entirety because the fee schedule is only referenced in the Ordinance and not attached thereto. Mr. Kirkham stated that they have looked at different City’s in Idaho and how they do it, and how it is rolled out in City Code, and they have found examples of both ways; with impact fee ordinances with a detailed fee schedule set out in the Code itself; and there are places that have a separate external reference fee schedule that is made a part of the ordinance. Idaho Falls has a fee schedule that is external and incorporated by reference. Mr. Kirkham stated that part of the confusion on the roll out had to do with the City complying with the requirement to notice fee changes in a newspaper before they were adopted. Kirkham stated that May 1 was supposed to be the effective date for the Ordinance and Fees, and so when City staff was saying to get stuff in by May 1. There was a printing error, and the City was unable to get the two-week advertisement in to the newspaper, and on May 12, they met the 2-week deadline, and that fee ordinance was approved and then became effective June 1 to make an allowance for people who had applied after the Impact Fee Ordinance was effective, but no fee to apply because the fee schedule hadn’t been approved as required by Idaho Code. Mr. Kirkham stated that June 1 is now the deadline that matters, as that is the first time that there was an effective fee schedule to be calculated and applied. Slide 2 - Impact fees are owed when a completed building permit application is submitted to the City. The Ordinance states that the fee payor shall pay the fee following application for a building permit, and prior to the issuance for that permit. Mr. Kirkham stated that the City imposes the duty to pay the impact fee when they received the completed building permit application and that is prior to when the City issues the permit, it all happens the day that everything is submitted, and staff can react to that. Slide 3 - What is required for a complete building application. Kirkham stated that a building permit application is complete when the City has received everything it needs to issue a permit. Kirkham stated that the City’s practice is not the only thing that establishes what a complete building permit application is, as this City has adopted the 2018 International Building Code and there is a definition for City Council Meeting Minutes November 22, 2022 what a building permit application is. Kirkham read from 2018 International Building Code Section 105.3 and there isn’t a dispute that most of what was required was included in Fall Creeks building application, they included the identity of the work to be done (residential house); described where the work was going to be performed; indicated use and occupancy for which the work was intended; it was accompanied with all the appropriate construction documents that are required under the International Building Code; they stated the valuation of the work; they signed it; but they did not include other data and information that was required. Kirkham indicated that Brad Pickett testified that he has known that there was a requirement to have a subdivision guarantee attached to the building permit. Kirkham stated that City Council has adopted a Subdivision Ordinance that states that prior to an issuance of any building permit a guarantee of completion shall be provided (Section 10-1-12(A) Slide 4 - Mr. Kirkham stated that the dollar amount that is required to be paid is sourced from the developers engineer. Mr. Kirkham stated that the cost estimate for the subdivision and the public improvements that are within are submitted and approved by the City and to get to the dollar value, you take the development cost estimate, add 10% and then you get 150% of that and you get a variety of different ways to satisfy that amount, including a surety bond, cash deposit, certified check, negotiable bond, or irrevocable bank credit are accepted by the City if that is submitted. Mr. Kirkham stated that you must have the Guarantee of Subdivision Public Improvements, that is established through the developers engineer and their estimate that is checked off by the City Engineer, and that must be submitted to have a complete application. Mr. Kirkham stated that this subdivision started with an application for a preliminary plat. December 23, 2020 the City received the application for preliminary plat, and there were a lot of reviews on that plat, and some of the issues was the developer shifted gears and changed the divisions so that the Division 11 had lots moved out of it, and there was a restructuring, and the main issue was a dispute over public improvements that were required to be on the subdivision plat, including a sewer line extension and a storm water connection on the property. Slide 5 – Map of Plat. Mr. Kirkham showed the pipe that needed to be connected and the storm water connection that needed to be made. He stated that as that was going forward and they were working through that, the City held to its guns that the sewer line needed to remain and it was approved on March 24, 2022, and the developer paid an inspection fee, which included the developer’s cost estimate for the subdivision guarantee, and that included the public improvement calculations for everything including the disputed sewer pipe and storm water, and the estimate was $1,700,081. The guaranteed amount was calculated and approved pursuant to the subdivision ordinance on March 29, but the developer didn’t submit a guarantee that was acceptable to the City because there was a dispute on whether or not the infrastructure was appropriate or acceptable, and that is why the subdivision improvement guarantee was not paid at that time. Mr. Kirkham stated that the final plat was approved by Council on April 14, 2022. The City was working at the same time on the impact fee ordinance and on April 1, the fee became effective, and between May 6 and May 9 the developer initiated some housing permits for application that included all of the things the international building code requires, except the public improvement guarantee bond. On May 27, the City’s review of everything that was submitted was completed but the permit was not issued because there was no guarantee. On June 1, the impact fee schedule became effective and after that date, all completed building applications were subject to the fee. On June 15, City Public Works and Developer agreed to modify the requirements, and the developer requested a revision to be made to the subdivision guarantee, and the City provided on June 22, and they approved the revisions, and reevaluated the guarantee at $1,717,000, which is less than the $1.78 million from previous estimate on March 29. On June 22, the developer paid the public improvement guarantee. On August 22, the building permit fee was paid for the 2 lots, including the impact fee being paid under protest on the 2 lots that are a part of this appeal. Mr. Kirkham stated that if they apply that timeline to the City’s Code, it is the City Staff’s position that the Fall Creek Building permit was not complete until it provided a subdivision guarantee that is required by the City Code. City Staff agrees with Fall Creek, that a City Council Meeting Minutes November 22, 2022 developer is entitled to the law in effect at the date they submit their application. You do not want to change the game plan when you are halfway down the field. Kirkham stated that entitlement is only available when the application is complete. Mr. Kirkham stated that it is a property right in the application because it gives you something, it gives you the privilege to exercise a right. Slide 6 – Mr. Kirkham stated that the entitlement is only available when the application is complete. Mr. Kirkham stated that you only get a constitutionally protected private property interest when it is something the City has no discretion over, which is called a ministerial act. The Ministerial Act means you must act on it because you have no other choice. Mr. Kirkham stated that building permits are an example of a ministerial act the City performs. An applicant comes in and submits plans, the City reviews the plans to make sure they are consistent with City Code, and if they are, then the City is required to issue the permit if the application is complete, but if it is not complete, City Staff cannot do anything because there is no discretion. If you receive everything on an application for a building permit except one piece, you don’t have a completed building permit, you have part of it, and you do not get the constitutional protection for a property right until you have fulfilled all the requirements, and the City would have no choice but to issue the permit. Mr. Kirkham added that an incomplete application cannot save your place in line or preserve the law at the time of your incomplete application. Mr. Kirkham defined ministerial duty as a mechanical response that a governmental official must do as a feature of their office; as opposed to discretionary action, that is a decision that a governmental official can make based from reasoning and criteria that gives leeway to do something that is different. Mr. Kirkham gave examples of discretion and ministerial (PUD = discretionary). Mr. Kirkham stated that if there is a complete application you have everything, and the permit must be issued. He indicated that Council needs to interpret its own ordinance and determine when it is that an application is complete. Slide 7 - Kirkham stated that an application is complete when everything is met. Kirkham stated that the 2018 International Building Code’s Definition of what is a building application and what other parts have been added to that. Kirkham showed all the requirements that are disputed that Fall Creek Homes met but Fall Creek Homes didn’t give other data and information that is required by the building official or the City, and what that is, is a construction guarantee payment for public improvements. Mr. Kirkham stated that the language in the Building Code states that it has to be provided prior to the issuance of a building permit because it is part of the application. A permit is not something that City Staff has any discretion over. City staff received building permits on May 6, and May 9 that were not complete and were not completed until June 22 when the subdivision guarantee was paid. Kirkham stated that is after June 1, and City Staff then assessed an impact fee, because the impact fees had been active for 22 days. Councilor Hally asked about a final inspection from an official from the City, as there was a reference made that their engineer forgot or didn’t think about the connection that needed to be made, and that the City engineer forgot too. Mr. Kirkham indicated that Councilor Hally is talking about the public development work that needed to be done and Mr. Kirkham deferred to Assistant Director Chris Canfield. Mr. Canfield stated that they had a plan as part of the preliminary plan planning, they had a line to take the storm water through the prior development down to a final storm pond to the south. Canfield stated that during the plan reviews they pointed out that they need to make the connection, and they had a requirement for the sewer stub. Canfield stated that by policy they extend utilities to neighboring developments. Mr. Canfield stated that in March there was a quoted $1.78 million subdivision guarantee fee, and at that time, there was a calculation done to calculate the inspection fee and the subdivision guarantee and that effort is the same for both of those fees, and that is when the inspection fee was paid, when he was progressing through with this development. Mr. Canfield indicated that Mr. Picket chose to proceed with construction throughout the summer, and then came and talked to staff about the revised developments. Mr. Canfield stated the choice is to complete all the subdivision improvements, and then there is no guarantee of completion required, because everything is constructed and accepted by the City. He said in May or June, they didn’t have the as-built plans from City Council Meeting Minutes November 22, 2022 Mr. Pickett’s engineer. Mr. Canfield stated that they could verify that the subdivision guarantee does allow for when portions of the development are completed, you can reduce that subdivision guarantee to the remaining applicable amount. Mr. Canfield stated that they verified that the paving was done, that the storm line was missing, and they did discuss the sewer stub, and stated that they could live without it in this case because the road was constructed, as there was a miscommunication in getting the sewer stub extended and they felt like by the time they take out the road for the sewer stub, they would be projecting how the development would go to the east of that, and what phases would be benefited by the stub. Mr. Canfield stated they felt like instead of tearing up the road, they can prolong the effort and remove the requirement. Mr. Canfield indicated that the total subdivision guarantee in June was $150,000 based on 5% to get the finalized punch list items as he can submit his as built packages from his engineer. Councilor Hally stated the developer realized he had to get the guarantee and checked with someone in the City and was told he was ok, and not worry about the impact fees. Mr. Kirkham stated what is unusual in this case and other development that has occurred and will occur after this, is that impact fees were becoming a thing in the middle, so it is probably typical that there are a lot of moving pieces happening at the same time, and the developer might not realize that their permit application isn’t complete until they are looking for permits, and staff tells them they can’t issue because they haven’t complied with everything. Councilor Hally stated that a developer can make an application with several things not complete. Mr. Kirkham agreed that City staff will start the review and work through things they have so they don’t’ hold up development, but if they do not have a complete application, they cannot execute the ministerial duty to issue the permit. Councilor Hally confirmed that the fees don’t have to be attached to the ordinance. Mr. Kirkham stated the fees are attached to the Ordinance, as they are incorporated by reference. The Fee Ordinance references the Fee Schedule, and other City’s including Coeur d’ Alene do it that way, and other City’s do incorporate it in its entirety. Mr. Kirkham stated the International Building Code is adopted entirely by reference by the City in City Code. Council President Dingman asked Mr. Kirkham to verify that Council is considering for the appeal, whether the interpretation of the Fee Impact Administrator (Director Alexander) and her decision to invoice for impact fees based upon Council’s intent of the Ordinance and the way the Ordinance is written, and whether that was correctly applied. Mr. Kirkham agreed that they should question whether staff is interpreting Council’s Ordinances correctly. Council President Dingman asked if the argument Mr. Kirkham is presenting is that when the Fee Administrator looks at the Ordinance, they look at the evidence, and if they have a complete building permit application, regardless of any other conversation or opinion. Mr. Kirkham stated that is the only way to interpret it. Mr. Kirkham stated that the only actions that can bind the City are what the Council has approved, per the Ordinance. Mr. Kirkham stated that if you rely on something that conflicts with the law it is to your detriment. Councilor Francis asked what Mr. Kirkham feels 10-86 says where the word complete is not included in that statement. Mr. Kirkham stated that the word is not in there. Mr. Kirkham stated it suggests that there is a completed application on which a permit can be issued. He said staff aren’t going to issue that permit before impact fee is paid because staff has no discretion on whether they issue a building permit or not, they are only doing a ministerial duty. Mr. Kirkham stated that if you think like a robot, and follow words exactly, “following an application, but prior to the issuance” what could that mean. If you get an incomplete permit, you cannot issue it, and if you have a complete you should issue, but this says wait until the impact fee is paid, and he interprets it that way, and feels he is correct. Councilor Radford asked at what point did Mr. Kirkham think the Developer knew they had an incomplete application as it seems like it was complete on eTrackit, and he hasn’t heard anything to make them think they had an incomplete application. Mr. Kirkham stated that everyone is on notice of what the City’s Ordinance is, and ignorance is no defense. Councilor Radford stated that if he submitted an application and it was accepted on eTrackit he feels his application is complete that would be an indication that they met everything needed by May 9 and prior to June. Mr. Kirkham stated that Mr. Picket knew the subdivision City Council Meeting Minutes November 22, 2022 needed to be paid, and the reason it was delayed was due to a disagreement, and when the City conceded it was paid immediately. Council President Dingman asked if they pay the guarantee in eTrackit. President Dingman asked if there is information in eTrackit. Mr. Canfield stated that when the guarantee is provided, they post in eTrackit under the plat module the details of the guarantee. Council President Dingman asked if on the applicant’s side, when they apply for a permit in eTrackit, do they pay $1.7 million in eTrackit, or is that hand delivered check. Mr. Canfield stated that the tracking of the development permit in eTrackit is under the plat program, and it is to track if building permits are allowed, if the subdivision improvements associated with the plat, and if the bond has been provided, those are marked and adjusted as they are received. Council President Dingman asked again if the bond is provided for the applicant to the City through eTrackit. Mr. Canfield stated it is an exchange back and forth where it is a calculation, so the check is provided in hand, or a bank credit. President Dingman confirmed that you cannot complete an application in its entirety just by going online. Mr. Canfield stated that they have received deposits via credit card and applied remotely, but 90% it is the case they appear in person. Councilor Radford asked Director Brad Cramer that on May 30, did Cramer feel it was a complete application. Director Cramer indicated that he did not. Councilor Radford asked why not give them a call. Director Cramer stated that the status of permits was changed to ready to be issued on May 27, and whether staff contacted them or not, he doesn’t know. Councilor Radford stated that they were trying to make it happen smoothly, and he doesn’t feel that the appellant knew they were in the risk, but Director Cramer knew on May 30 they were in risk. Councilor Radford asked if the City knew on May 30, did the appellant know on May 30, or was this discovered when they went out to bill and it was discovered they should have been billed. Director Cramer stated that typically when a permit is ready to be issued and if the building department staff knows that one of their check list is to make sure the plat is recorded and the fees are paid with other departments, they will check to see if it has happened, and then when a developer calls asking if their permit is ready to be issued, they will tell them it is ready to be issued, but you need to do … and they will give them the outstanding list of things. Councilor Radford asked how many other people were in this same way on May 30. Director Cramer put together a list of outstanding residential permits before the established June 1 date, and they decided how much time to get them issued. They put an emphasis on getting the ones submitted, including these ones, ready to be issued before June 1, and they were ready, but because they were incomplete, they could not issue the permit. Director Cramer stated that it was known that the subdivision guarantee must be taken care of before a permit was issued and given the dates that were discussed in the timeline, it was known, and the number was known in March. Councilor Radford asked if they have a complete application, they are supposed to take payment for the impact fees, and this wasn’t done here, so the City obviously thought the developer wasn’t going to have to pay impact fees. Director Cramer explained that that when a building permit comes into the office, the only thing that is collected at that time that they deliver the application, is a plan check fee. Director Cramer stated that fee covers the cost for staff to review the permit, and once the permit is ready to be issued, they don’t issue until they collect the remaining fees which are the building fees, and the impact fees, so they would not have collected an impact fee until they are physically handing over the permit. Councilor Radford read 10-8-6A it says, “imposes the responsibility to pay an impact fee and the City has received a complete building permit application prior to when the City issues a permit.” Director Cramer stated that “prior” they pay the fee, and the City issues the permit. Director Cramer clarified that it is simultaneous. Councilor Radford stated that in this case, they would have done that, and why didn’t they collect an impact fee, if they thought it was after June 1, they would have wanted to get the fee. Mr. Kirkham feels an impact fee was owed, and they could not get the permit until they submitted a complete application with the subdivision guarantee paid on June 22. Mr. Kirkham stated that the City Council Meeting Minutes November 22, 2022 application was not complete and having the subdivision guarantee is an integral part of having a complete building permit application. Councilor Radford asked about the process for a developer to know when their application is complete, and at what point did they know. Mr. Kirkham stated that on March 29 when the City approved the developer’s estimation of the public improvements guarantee at that point the developer had all the information needed to comply on March 29, and for whatever reason it wasn’t paid until June 22, after they asked for a revision, and that revision was approved. Mr. Kirkham stated that it is clear as you are working through the plating process, that you are not going to get building permits, and you need to have the plat and the subdivision guarantee paid before a building permit will be issued. Councilor Radford asked about the due process question and why the Council shouldn’t just deny on that basis. Mr. Kirkham stated that there is not a good excuse on why the hearing didn’t occur, other than it was the first one and staff was struggling with what was being asked and there is a mechanism in the Code that allows you to have the Fee Administrator weigh in first before an appeal, but there is not a good excuse. There was a procedural due process error, but what is the remedy for the delay, and that is the real question. Mr. Kirkham stated that the answer is to give the process that is due and that is being addressed tonight with the hearing that is currently taking place. Mr. Kirkham stated that the second part is to ask what prejudice or injury, or other ill effect occurred because of the delay. Mr. Kirkham stated that if the delay is so unfair that there is no possible way to give a fair hearing, then you can conclude that the only remedy for the violation is to grant the appeal based on that basis. Mr. Kirkham stated that the City Code doesn’t specify what the consequence is for a delay. He said that what is at stake is a refund, and the City held onto the money longer than it should have, and if they are not entitled to a refund, then they aren’t entitled to anything, and what injury did they sustain. Mr. Kirkham stated that the remedy owed is to provide the process due, with the hearing tonight and to weigh out what the possible effects could have prejudiced the applicant and to weight those in favor of the applicant. Mr. Kirkham doesn’t feel that the delay was so severe that it required throwing out this hearing and throwing out the Fee Administrator’s ability to appear and justify the fee. Councilor Radford stated that on June 22 the Public Improvement Guarantee was paid, but they didn’t hear until August 22 that they were going to have to pay the impact fee, why didn’t they tell them on June 22 that they should pay the impact fee. Mr. Kirkham stated that they did know that, and it was paid under protest. He noted that there are 13 permits being appealed and impact fees are paid on 2, and they are asking Council to determine no impact fee is owed on the others. Mr. Kirkham stated that there are some development agreements that impact road a bridge fees, and will pull permits that are subject to impact fees, and that is built into the code on how to address that, and when those come up, a developer is entitled to an adjustment on that, and the advice that City staff has been operating under, is to not double dip, and the cases where those road and bridge fees have already been paid to apply that as a credit towards the impact fee. Kirkham stated that it is being addressed but is not sure if it was addressed in this case. Councilor Burtenshaw asked if the only thing that was collected that would no longer be in effect was the road and bridge fee, and she assumes it was collected in order for the application to be complete. Mr. Kirkham understands that those are paid on a schedule, and they are not a part of the building permit application. Mr. Canfield stated that the arterial road and bridge fee that is referenced in the development agreement is on a 2-year schedule, and by ordinance that is defined. Mr. Canfield stated that as of last Friday they did a follow up and they did a development agreement, they executed it in March 29 and there was 10% of that fee that would be due, and in the following month the controller’s office issues an invoice for it. With verification of payments those would be evaluated and addressed accordingly. Mr. Canfield stated that the Treasurer’s office emails him the status of those notes and as of last Friday they hadn’t been paid, so they are in a situation that they will have to address it. Mr. Canfield stated that they can amend the agreement to address it to remove the fees. Councilor Burtenshaw asked for clarification as she understood what Mr. Canfield said to mean that up to this point, no road and bridge fees have been paid, and there needs to be a City Council Meeting Minutes November 22, 2022 modification of the development agreement, or if it has been paid, it will be credited toward the impact fees. Councilor Francis asked if the development guarantee would show up in eTrackit. Mr. Canfield stated that each lot has a plat, and each plat has a parent project, and when they create a building permit project, they look at the parent project, and there is a subdivision tab to check for the allowance if that plat is ready to have a building permit issued. Councilor Francis asked if the developer had access to that information. Mr. Canfield is not sure of the details on what the developer has access on eTrackit. Councilor Francis asked if he understands correctly that the development guarantee element to finish out the approval, would have been in eTrackit during this time period, so it was accessible by the developer. Director Cramer agreed with Councilor Francis understanding. Council President Dingman asked if this is their first project for the developer in the City of Idaho Falls. Director Cramer stated it is not. Councilor Francis feels it is odd that they have the rule about responding within 15 days and then the 30-day period, and the word Shall is very clearly in that section of the Ordinance, and there is no consequence spelled out. Council President Dingman clarified the word consequence for the word remedy. Mr. Kirkham stated that in the Idaho State Code there is a requirement for jury trial within 6 months, and if you don’t then that is a violation of the Statute, very often that doesn’t occur, and what happens is Court’s see if there was good cause for the delay, and as part of that they look at what prejudice or injury or difficulty was caused while waiting, and if those prejudices are so severe, it makes the meaning behind the trial inert. Mr. Kirkham stated that there is no dispute that there has been a due process concern, and they are now giving process that is due, and now they need to look at what injury happened, and what can you do about it. Mr. Kirkham feels it is up to Council and they need to ask what the injury was on the delay. Mayor Casper directed Council to look in their packets Part D under appeals, as that sums up what they are trying to decide tonight. Mayor Casper asked Kirkham about the phone call, who made it, when it was made, why they made it, and whether it has status or merit and value, but she feels it did throw off the judgment of the appellant. Mr. Kirkham stated that the law in Idaho (City of Idaho Falls vs. HK) a party that the City had a contract for a certain piece of land, said that the City had released that party from their obligation to convey the property because the City’s parks and rec director had told the contracted party that the City didn’t need the property and the contracting party relied on the statement and never conveyed the property. Later the City was doing inventory and one of the properties was this parcel, and when the City did due diligence to utilize the property for the project, they discovered that the deed had not been delivered, and they asked the party they had a contract with, and asked the party to make good on its contractual obligation, and the party claimed they had, and the City released them from it City Council had no idea, but the party that had the contractual obligation was told in a parking lot, that they didn’t have to give that property and they relied on that promise. Idaho Supreme Court stated that only the actions of City Council can bind the City and there is no apparent authority for City’s employees to make promises that are not based on off the City’s Codes, Ordinances and if you rely upon those promises, you do so at your detriment. Mr. Kirkham stated that legally it is irrelevant to what happened on the phone call, and the Council is free to interpret the Ordinance, but it is the actions of the Council that bind the City, and not promises of City staff. Councilor Radford stated that legally he is spot on, but from a standpoint of giving service, that is a nightmare. Councilor Francis asked if the guarantee of the development had been paid by June 1, they would not be here. Mr. Kirkham stated that if the application was complete and that would have included the subdivision guarantee, and if it was paid before June 1, they would not be here tonight. Appellant: Jacobsen disagrees with Kirkham’s legal analysis with respect to City Council being the only body to hold the City responsible for something. Mr. Jacobsen is not familiar with the case that Mr. Kirkham referenced but based on the facts in that specific case the City Council only one that had the authority to deal with those issues. Mr. Jacobsen has represented municipalities, and he has dealt with City Council Meeting Minutes November 22, 2022 cases where representatives of a municipality have made representations that bound that municipality. Mr. Jacobsen feels it is absurd to make an argument that only the City Council can bind the City. It’s a question of apparent authority, and it is not the City Council that would tell Fall Creek Homes that their application is complete, or not, it is other representatives of the City that make that decision and bind the City. Mr. Jacobsen stated that due process on this matter, and in his experience, he has never seen a criminal defendant miss his 6 months (Speedy Trial) without the Court having the Defendant knowingly waive that, because if it is missed that Defendant has charges dismissed, unless speedy trial was waived before the Judge. Mr. Jacobsen stated that the deadlines within the ordinance were missed, and the appeal that has been initiated should be granted based on procedural due process grounds. Mr. Jacobsen stated that there is no case law or basis to determine injury, and the injury is there was a due process violation. Mr. Jacobsen stated that implying that the cure is to give this hearing, ignores rules, and allows the rules to always be ignored. Mr. Jacobsen stated that it has been alleged that a building permit application was incomplete because the developer didn’t pay something until June 22, but he still paid it, so why do we hold him to the deadline, and there is a double standard. Mr. Jacobsen asked for due process violation and grant appeal. Mr. Jacobsen stated that the date of filing the application is what is applicable. The City Council has in its packet all the email correspondence on what the City’s position was, and no time was the argument made, that Fall Creek Homes application was incomplete. What was said in the past was City is going by date of issuance of the permit, and now today they want to conflate the issuance versus application filing. Mr. Jacobsen stated that Director Cramer said that they are simultaneous, and that is not true, and Idaho law has specified that the filing of the application is the date to look at, not the issuance date. Mr. Jacobsen read from case law of Idaho Supreme Court "The Policy undergirding this rule is to prevent local authorities from delaying or withholding action on an application in order to change or enact a law to defeat the application.” Mr. Jacobsen read from another Supreme Court case " The rule is an outgrowth of the well-established principle that legislation does not ordinarily have retroactive effect.” Mr. Jacobsen stated that the rational for the rule is permitting a City to apply an amendment to a previously filed application would allow a City to withhold action on a permit. He said that is the reason for the rule. Mr. Jacobsen stated that the developer filing the bond had no bearing on the application for building permits, and it is a separate issue. The builder Fall Creek Homes files for building permits, and the bond is a developer issue. Mr. Jacobsen stated that what caused the delay in filing and submitting his bond, was there back and forth between the City on what the amount was to be, and he didn’t have an amount from the City until June 22 when he paid it. Jacobsen stated that you should go by the time of filing the application, which was May 6 and May 9. Mayor Casper asked why there was no urgency, knowing there was a June 1 deadline looming, to resolve the dispute by June 1. Mr. Jacobsen stated that the reason there was no pressure was because representations made by City representatives, and they said not to worry about the impact fee as you’ve already submitted your applications for permits, so no impact fee will be assessed. Mr. Jacobsen stated there was some urgency to get the permit to build homes. Councilor Burtenshaw asked if a different builder had purchased one of the lots, would it have appeared that the application was complete to submit the building permit and move through the process. Burtenshaw confirmed Fall Creek Homes is the builder and Fall Creek Homes got the applications and they looked complete, and the developer had not completed his portion of the agreement by paying the bond, but the builder was not issued the permit because the developer had not completed his portion. Mr. Jacobsen agreed and stated that Fall Creek had no idea that it was an issue. It was not until later that the City said this must be done before it is issued. Mr. Jacobsen has seen in other cities that the city will not accept a building permit application unless everything has been done up to that point. He said it bolsters the concern about confusion. Councilor Hally asked if a developer and a builder are prepared for something, and they know they have a deadline approaching, and they know they cannot meet all of City Council Meeting Minutes November 22, 2022 the requirements to qualify and they are going to have to pay taxes, and they say just “file an application”. Mr. Jacobsen stated that that application would not be accepted. Councilor Hally asked how they can deny an application unless you accept it and make a ruling that you don’t meet the requirements. Mr. Jacobsen has represented Teton County TCR vs. Teton County, and the County has denied accepting applications because they were incomplete. Mr. Jacobsen stated that there was no indication of that here. If it was the City’s position that Fall Creek’s application was incomplete, he would have expected the application be rejected and they would need to refile. On May 27 eTrackit showed the permits ready to issue. Mr. Jacobsen stated that they had been accepted, gone through the process, and deemed a status of ready to issue. He said that it was a bond on the developer’s end was what was needed, and they would have met it if they knew the City was going to go from date of issuance, and Idaho Law states you go by date of filing the application. Mr. Jacobsen stated that Kirkham’s’ PowerPoint didn’t show that the bond is required for a complete application. Mr. Jacobsen showed the Power Point that showed what is required for a complete building permit application. He said it shows from the 2018 International Building Code 105.3 what is required and everything in that list was provided in the applications, and that is why they were accepted, that’s why they were deemed ready to issue. The next point is the City requires a building permit application be submitted with the paid subdivision guarantee. The developer of a subdivision within the City shall be required to construct and install all public improvements and drawings for each subdivision, or phase thereof prior to the issuance of a building permit. Mr. Jacobsen stated that they are mixing up the filing of an application and an issuance of a building permit. The application was filed on May 9 and that is the date that they look to, and what law existed on May 9 when Fall Creek Homes filed the applications, and at that time there was no impact fee. Mr. Jacobsen has asked to be reimbursed for the two building permits that were paid under protest and remove the assessment on the remaining 11 lots. Mr. Jacobsen first requested the Council to procedurally vote on the due process violation and whether they need to proceed to determine anything further. Mayor Casper asked if the Council needs any additional information. Councilor Hally has no questions and wants to vote on whether they approve or deny. Councilor Francis stated that he cannot see a remedy unless appellant shows damage. Mr. Jacobsen stated that the damage was the process violation in and of itself, the Ordinance mandates that it be held within 30 days, and it was not, so that is the damage, is the due process was violated. Brad Pickett stated that the reason whether this hearing is legal is due to a date that was not met, and the reason for the hearing is because a date was not met. Mr. Pickett asked how it can be ok for the City to ignore the hearing date and still move forward, but as a developer, he cannot be allowed to a date and move forward because there was no damage that can be proven. The law doesn’t say that damage must be proven. Mr. Pickett stated that in the future he will be held accountable for a date he missed by 3 weeks, and the Council missed a date by 3 weeks, and they are willing to overlook that, but not overlook Mr. Pickett’s missed date. Councilor Radford asked when in eTrackit did they find out this was incomplete. Pickett stated that they never found it was incomplete. Councilor Radford asked about the March 29 date. Mr. Jacobsen stated that March 29 is when the development agreement was entered and that did not establish a bond amount. Mr. Pickett stated that the $1.7 is not in question, as that $1.7 million was from 2 years prior to that for the subdivision. The only thing in question is what needs to be completed. Councilor Radford is trying to establish when the City told them they screwed up. Mayor Casper indicated that there was never a message conveyed like that. Mr. Pickett stated that they were going off application, and they didn’t know until they got fined the impact fees that it was different. Mr. Jacobsen asked Mr. Pickett when he was made aware of the amount of bond to be paid. Pickett stated that when he got the number, he wrote the check. He said he is not blaming anyone; it’s a process and they work with engineers and contractors to come up with amounts. Mr. Pickett stated that if Director Cramer’s office had made a call to the builder telling them their permits are ready, and we are now going off issuance, instead of application, Mr. Pickett would have written a check that day to make City Council Meeting Minutes November 22, 2022 sure it would happen. Councilor Radford asked if there was any delay getting the money once the amount was given. Mr. Canfield stated that they met on the 15th of June, and they were talking about improvement requirements, and met on the 21st of June and established a value based on the removal of the pipe and the need for the acceptance of the remainder of the subdivision. Mr. Canfield stated that the $1.7 in March was based on the inspection fee calculation, and public improvement cost estimate that sets the value for the subdivision guarantee. Councilor Radford stated that it would be fair to say that he knew on June 21 what he needed to pay. Mr. Canfield stated it is an ongoing process with Director Cramer, and they will go an evaluate what has been complete within the subdivision, and then they took 5% for punch list items to allow them to do an inspection and his engineers are doing their as built package at the same time and they are trying to work with them on the acceptance process. Mr. Canfield agreed that there was no delay in payment. Council President Dingman asked if they could not calculate the improvement guarantee because they were in negotiations regarding the public improvements. Canfield stated that they had an email exchange to say the value was based on the inclusion of those extensions or sewer stubs and they had met later to set that value. President Dingman asked when the decision was made. Mr. Canfield stated that the decision was made on the 21st of June. President Dingman stated that staff did not delay providing that number, but negotiations had not been completed prior to that date. Mr. Canfield agreed and stated that they could have done a subdivision guarantee to include those improvements on June 1, had they sat down to do them. Mr. Pickett stated that the confusion is application versus acceptance, and if the City had been clear at that point, the State Statute is very clear on application as well as the ordinance is clear on application, it doesn’t say completed application, it doesn’t say issued application, it just says application. Mr. Pickett stated that they were working as fast as they could with Mr. Canfield, and if he had known on May 27 there was a question and it is on issuance, and this must happen, they would have worked something out to make it work. Mayor Casper closed the hearing. Council members deliberated. Mayor Casper asked if anyone was ready for a motion. Councilor Freeman doesn’t believe harm was done and is not addressing due process. It was moved by Councilor Freeman, seconded by Councilor Hally to deny the appeal. Motion died with the following vote. Aye - Councilors Freeman, Hally, Dingman. Nay – Councilors Francis, Radford, Burtenshaw. There is a tie vote and Mayor Casper can vote as the tie breaker. Mayor Casper stated she is going to vote no, because she would like to give space for another motion to come forward that may compromise and capture more than just a 50/50. Mayor Casper stated that if that doesn’t work, the same motion could be made again if no compromise could be made, and she might have to vote yes at that point. Councilor members discussed compromise as there was a miscommunication on the city part. Council President Dingman added that they can modify the impact fee, refund, reimburse, so you could approve the appeal with a particular remedy. Mayor Casper stated that the application was not complete, and it is not unreasonable to think that complete is required, but the City bears some responsibility. Councilor Francis moved council revise the appeals settlement in recognition that the City to a degree failed to communicate fully at both ends of this process and suggested establishing a 10% revision (10% of the year being late in June compared to 1st of June). President Dingman clarified that 10% revision means 10% refund on the fees. Councilor Francis agreed and stated that a month late is essentially 10% of the year. Councilor Radford asked if they get a 10% discount on the remaining lots that weren’t paid. Councilor Francis understands the appeal is for 2 lots. Mayor Casper clarified that the appeal is to refund 2 lots and wipe away 9. Councilor Francis wants to apply the 10% to everything, not waive the fees. Councilor Francis agrees with Burtenshaw that there is no argument whether the resolution fees were in City Council Meeting Minutes November 22, 2022 the ordinance. Councilor Francis stated that the discount is only because of a degree of miscommunication at both ends. President Dingman clarified that they motion would create a refund of 10% of the fees that have already been paid and apply a 10% discount to the future impact fees for the rest of the lots. Councilor Francis agreed and stated that the City has some responsibility for miscommunication on both ends. Councilor Freeman asked Francis to add something about it being this specific piece of the development, so that it doesn’t apply to the development after this hearing. Councilor Francis agreed that it only applies to the properties listed in the appeal. Councilor Freeman second the motion. Council President Dingman clarified that the motion made by Councilor Francis is to provide a 10% refund of the fees paid and apply a 10% discount to the future fees that would apply to the lots that have not been finalized that are specified in the appeal documents. There was discussion about the amounts being quoted. Councilor Freeman asked for a reminder on the motion. Mayor Casper recapped the motion - Offer a 10% refund for the 2 impact fees that were paid on 2 lots under protest, which would amount to approximately $1,040.00 and apply a 10% discount to the remaining lots that are part of this appeal which would amount to approximately $527. Per lot with 11 lots remaining. It was moved by Councilor Francis, seconded by Councilor Freeman to Offer a 10% refund for the 2 impact fees that were paid on 2 lots under protest, which would amount to approximately $1,040.00 and apply a 10% discount to the remaining lots that are part of this appeal which would amount to approximately $527. Per lot with 11 lots remaining. The motion carried with the following vote. Aye – Councilors Freeman, Burtenshaw, Francis, Dingman, Hally. Nay – Councilor Radford. Mayor Casper stated the wording that Councilor Francis used was to devise an appeal settlement, so under the remedies that were available to the Council, it included the option of modifying the amount of impact fee, so they chose to modify the amount. Mr. Kirkham stated that he understood that the City’s contribution to the miscommunication and delay that were held on this appeal, damaged the appellant in an amount that was approximately 10% of the fee which is why it is being refunded. Mr. Kirkham asked if there were any other aspects of the appellants that were persuasive. Mr. Jacobsen clarified that it was miscommunication on both ends. Councilor Francis agreed. Mayor Casper stated that the attachment of the fee schedule by reference did not hold sway and they determined to reject the due process argument as carrying weight. Mr. Kirkham stated he going to write up a written conclusion and Council should look at that with liberal editing to make sure that staff got Council’s intention correct, and there will be another vote to approve the Findings of Fact and Conclusions. Mayor Casper asked that Council see it prior to the 5th. Mr. Kirkham will try to get that to the Council in advance of the work session. Mayor Casper stated that she was wrong when she said due process argument didn’t hold sway, because it did, because Councilor Francis mentioned both ends, hence the other end is the 30-day date. Dingman agreed that is how Francis calculated the amount in his proposal. G. City Attorney 1. Resolution confirming Mayor’s authority to accept donations on City’s behalf Assistant City Attorney Michael Kirkham appeared and presented the following: Mr. Kirkham indicated that someone has left a bequest to the City that requires the Mayor to accept some securities. Mr. Kirkham indicated that a resolution is needed to get that accomplished, that authorizes the Mayor, as well as Rebecca Casper specifically as the person who can receive that. Mr. City Council Meeting Minutes November 22, 2022 Kirkham stated that the City has done things like this in the past that are similar, but it didn’t satisfy the people that are holding the funds and securities for the City, so this will make someone happy. Mr. Kirkham stated that the Mayor typically signs the resolution with a certification of the City Clerk, and the people doing the bequest stated that would not be acceptable, and the Mayor could not sign it and be identified as the person to receive it, so they have put on the resolution that Council President will sign instead. It was moved by Council Freeman, seconded by Councilor Burtenshaw to Approve Resolution confirming Mayor’s authority to accept donations on City’s behalf. The motion carried by the following vote: Aye – Councilors Burtenshaw, Hally Radford, Dingman, Freeman, Francis. Nay – None 6. Announcements Thanksgiving, no work on Friday, shop small Saturday, cyber-Monday, giving Tuesday. Grand opening to Mountain America Event Center. 7. Adjourned There being no further business, the meeting adjourned at 12:00 AM s/ Corrin Wilde s/Rebecca L. Noah Casper Corrin Wilde, City Clerk Rebecca L. Noah Casper, Mayor