City Council

NOTICE OF PUBLIC MEETING � Monday, December 5, 2022 IDAHO FALLS City Council Chambers City Clerk's Office 680 Park Avenue, Idaho Falls, ID 83402 3:00p.m. The public is invited to observe City Council Work Sessions. However, to observe appropriate social distancing guidelines, as recommended by the Centers for Disease Control and Prevention (CDC), seating in the Council Chambers may be limited. All seating is available on a first­ come, first-serve basis. The public also may view this meeting via livestream on the City's website at https://www.idahofallsfdaho.gov/429/Live-Stream. The agenda does not include an opportunity for public interaction. This meeting may be cancelled or recessed to a later time in accordance with law. If you need communication aids or services or other physical accommodations to participate or access this meeting or program of the City of Idaho Falls, you may contact Deputy City Clerk Jasmine Marroquin at 612-8415 or the ADA Coordinator Lisa Farris at 612-8323 not less than 48 hours prior to the meeting. They can help accommodate special needs. CITY COUNCIL WORK SESSION Times listed in parentheses are only estimates. Call to Order and Roll Call Mayor and Council: -Calendars, Announcements, Reports, Updates, Questions, and Discussion (10) -liaison Reports and Councilmember Concerns (10) Fire: -Discussion: Extension of Billing Services Contract with Whittman (20) Action Item: Council Direction to Staff -Discussion: EMS Event Contract with the Mountain America Center (20) Action It em: Council Direction to Staff City Attorney's Office: -Discussion: Fall Creek Homes Impact Fee Appeal Written Decision (20) Action Item: Approve the written findings and conclusion for the Fall Creek Homes impact fee appeal (or take other action deemed appropriate.) DATED this 2nd day of December 2022 Jasmine Marroquin, Deputy City Clerk P. 0. Box 50220- 308 Constitution Way- Idaho Falls, Idaho 83405- (208) 612-8415- Internet Homepage Address: www.idahofallsidaho.gov IFFD-Whittman Contract IFFD-EMS Mountain America  SERVICE AGREEMENT BETWEEN CENTENNIAL MANAGEMENT GROUP OF IDAHO, LLC., dba MOUNTAIN AMERICA CENTER AND CITY OF IDAHO FALLS, IDAHO THIS SERVICE AGREEMENT BETWEEN CENTENNIAL MANAGEMENT GROUP OF IDAHO, LLC., dba MOUNTAIN AMERICA CENTER AND CITY OF IDAHO FALLS, IDAHO (“Agreement”) is made and entered into this________ day of ____________, 2022, by and between the CITY OF IDAHO FALLS, IDAHO, a municipal corporation of the State of Idaho, (“CITY”) and CENTENNIAL MANAGEMENT GROUP OF IDAHO, LLC. dba MOUNTAIN AMERICA CENTER, (“EVENT CENTER”), effective ______________ _____, 2022, (the “Effective Date”). RECITALS: WHEREAS, EVENT CENTER desires to obtain professional emergency medical services (“EMS”) and emergency ambulance transportation services available on a standby basis during the events held at EVENT CENTER’S facility; and WHEREAS, CITY is willing to provide services described in this Agreement, and has the necessary equipment, training, expertise, insurance coverage, professional certifications, and licenses. NOW THEREFORE, in consideration of the foregoing recitals, mutual covenants, and promises, and provisions set forth in this Agreement and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: SECTION I: RESPONSIBILITIES OF PARTIES 1. Provision of Standby EMS Services. CITY agrees to provide, at EVENT CENTER’s request, adequately trained, equipped, and licensed EMS personnel to scheduled events at EVENT CENTER’s facility and at other EVENT CENTER-coordinated or sponsored events that occur at other locations, provided that such events occur within the geographic limits of the City of Idaho Falls, Idaho. These EMS personnel shall provide standby coverage and initiate medical care, emergency crisis support, and critical incident response. CITY EMS standby personnel shall report to event location no later than thirty (30) minutes prior to the event start time and remain until released by EVENT CENTER’s point of contact. CITY shall also communicate and plan EMS staffing needs in response to EVENT CENTER’s request prior to the scheduled event. EMS services shall include all equipment and supplies that may be necessary to triage and treat sick or injured persons in preparation to transport a person to a medical facility or evaluate, treat, and release a person. STANDBY EMS SERVICE AGREEMENT – 11.29.22 PAGE 1 OF 7  CITY shall provide standby EMS services with personnel and equipment that are not staffed as part of CITY’s normal response profile. However, CITY reserves the right, in the following situations, to allocate resources and deploy personnel as determined in the sole discretion of the Idaho Falls Fire Chief: a. In the event that CITY personnel deployed for standby EMS services under this Agreement are needed to assist in the transport of an injured or sick patient from EVENT CENTER’s event, additional staffing will respond, subject to available deployment as determined by the Idaho Falls Fire Chief, from the closest station to cover the event. b. Additional staffing resources are needed at the event due to excessive injuries, severe weather, mass casualty incident, or other unforeseen circumstance that occurs after the event as started as identified by CITY standby staff or in the discretion of the Idaho Falls Fire Chief. CITY shall maintain all certifications and licenses as required by federal, state and/or local agencies governing vehicle operations. 2. EVENT CENTER’s obligations. EVENT CENTER agrees to communicate any request for standby services at least four (4) weeks in advance of a scheduled event. Such request shall be made in writing and delivered to CITY’s designated point of contact. Requests for service shall include the following: a. Date, starting time, and duration of the scheduled event; b. Number of personnel needed to ensure the safety of the event participants; c. Special equipment requests; d. Exact location of the scheduled event; and e. Onsite contact person contact information, including phone, email, and location on the day of the event. EVENT CENTER shall also provide other event details that may be requested by the CITY. EVENT CENTER shall pay all invoices from CITY within thirty (30) days of receipt. SECTION II: 1. Standby EMS Service Labor and Inventory Costs The labor rates for CITY’s EMS personnel are intended to recover the actual direct costs, including benefits. In addition, the costs of inventory materials and purchased goods are intended to be passed through to EVENT CENTER with no markup. STANDBY EMS SERVICE AGREEMENT – 11.29.22 PAGE 2 OF 7  CITY shall invoice EVENT CENTER for all labor costs by the hour (with a billing minimum of two (2) hours per event) at the end of each month at the rates that are then currently adopted in the City of Idaho Falls, Idaho, Fee Schedule Resolution. Invoices shall round the total hours worked up to the closest quarter hour. EVENT CENTER acknowledges and agrees that CITY has the right to adjust these fees, from time to time, by Resolution as adopted by the Idaho Falls City Council. The fees are currently set as follows: a. Ambulance Standby $176 per hour b. Engine Standby $200 per hour c. Single Resource with Medical Kit $80 per hour 2. Term. The term of this Agreement shall commence on the date set forth on the first page of this Agreement and shall continue for a period of one (1) calendar year. This Agreement may be extended for successive one (1) year terms upon the mutual written agreement of both EVENT CENTER and CITY, and under the same terms and conditions as the initial period of this Agreement unless modified in writing by the Parties. 3. Termination. This Agreement may be terminated at any time, in writing, by either Party giving the other Party ninety (90) days advance written notice. 4. Compliance with Applicable Laws, Rules. and Regulations. All services furnished by CITY shall be rendered in full compliance with all applicable Federal, State and local laws, rules, and regulations including, but not limited to HIPAA, the Idaho Public Records Act, and Idaho Code § 50-907. It shall be CITY’s sole responsibility to determine which laws, rules, and regulations apply to the services rendered under this Agreement, and to maintain compliance at all times. 5. Indemnification by CITY. CITY hereby agrees to indemnify and hold harmless, to the extent permitted by the Idaho Constitution and the Idaho Tort Claims Act, EVENT CENTER, EVENT CENTER’s officers, directors and employees for, from and against all damages, losses, liabilities (absolute and contingent), fines, penalties, costs and expenses (including, without limitation, reasonable attorney fees, costs or expenses incurred in the investigation, defense or settlement of any claim covered by this indemnity) with respect to or arising out of any demand, claim, investigation or action of any kind or nature resulting from personal injury to any person (including death), or the damage to any property, arising or alleged to have arisen out of any of CITY’s negligent acts or omissions related to the performance of this Agreement. 6. Indemnification by EVENT CENTER. EVENT CENTER hereby agrees to indemnify and hold harmless, CITY, and CITY’s elected officials, appointive officers, directors, and employees for, from and against all damages, losses, liabilities (absolute and contingent), fines, penalties, costs and expenses (including without limitation, reasonable attorney fees, STANDBY EMS SERVICE AGREEMENT – 11.29.22 PAGE 3 OF 7  costs or expenses incurred in the investigation, defense, or settlement of any claim covered by this indemnity) with respect to or arising out of nay demand, claim, investigation or action of any kind or nature resulting from the personal injury to any person (including death), or the damage to any property, arising or alleged to have arisen out of any negligent acts or omissions of EVENT CENTER, EVENT CENTER’s officers, directors, employees or agents, related to the performance of this Agreement. 7. Independent Contractor. It is understood and agreed that the personnel of CITY and EVENT CENTER shall not be considered agents or employees of the other and shall not be under the supervision, management, direction or control of the other in the performance of their duties. The employees of each Party are not entitled to any of the benefits that the other Party provides for its employees. 8. No Joint Powers Agreement or Partnership Created. The parties herein specifically do not intend to and do not by this Agreement create a Joint Powers Agreement or partnership of any kind. 9. Governing Law. This Agreement shall be subject to and governed according to the laws of the state of Idaho. 10. Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their respective successors, assigns or other legal representatives. 11. Assignment. No right or obligation hereunder may in any way whatsoever be assigned or delegated to a third party with the express prior written consent of the other Party hereto, and any attempted assignment without such prior written consent shall be considered null and void. 12. Legal Fees. In the event either Party brings any action for any relief, declaratory or otherwise, arising out of this Agreement, or on account of any breach or default hereof, the prevailing Party shall be entitled to receive from the other Party, reasonable attorney fees, costs, and expenses related to such action. 13. Severability. If any portion or portions of this Agreement shall be for any reason invalid or unenforceable, the remaining portion(s) shall be valid and enforceable and carried into effect unless to do so would clearly violate the present legal and valid intention of the Parties hereto. 14. Notices. Any notice required or permitted to be given pursuant to any provisions of this Agreement shall be given in writing, and either delivered in person, by electronic transmission, deposited in the United States mail, postage pre-paid, registered or certified mail, return receipt requested, properly addressed, or by a nationally recognized overnight courier service, to the following addresses: City Event Center Idaho Falls Fire Department Mountain America Even Center STANDBY EMS SERVICE AGREEMENT – 11.29.22 PAGE 4 OF 7  P.O. Box 50220 1690 Event Center Drive Idaho Falls, Idaho 83405-0220 Idaho Falls, Idaho 83402 Attention: Duane A. Nelson, Fire Chief Attention: Casey Jackman, COO The notification addresses listed above can be changed by either Party with proper notice as listed above. 15. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes any previous agreement or understanding, whether oral or otherwise. No modification of this Agreement shall be valid unless in writing and signed by each of the Parties hereto. 16. Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. 17. Non-Discrimination. The Parties to this Agreement covenant that they shall not discriminate against any employee or applicant for employment on the basis of race, color, religion, creed, political ideals, sex, age, marital status, physical, or mental handicap, gender identity/expression, sexual orientation, or national origin. 18. Anti-Boycott Against Israel Act. Pursuant to Idaho Code section 67-2346, if payments under this Agreement exceed one hundred thousand dollars ($100,000) and EVENT CENTER employs ten (10) or more persons, EVENT CENTER certifies that it is not currently engaged in, and will not for the duration of this Agreement engage in, a boycott of goods or services from Israel or territories under its control. The terms in this Paragraph that are defined in Idaho Code section 67-2346 shall have the meaning defined therein. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their authorized representatives on the day and year first above written. “CITY” ATTEST: City of Idaho Falls, Idaho By Jasmine Marroquin, Deputy City Clerk Rebecca L. Noah Casper, Mayor STANDBY EMS SERVICE AGREEMENT – 11.29.22 PAGE 5 OF 7  “EVENT CENTER” Centennial Management Group of Idaho, LLC., dba Mountain America Center By ______________________________________ STATE OF IDAHO ) ) ss. County of Bonneville ) On this __________________day of _________________, 2022, before me, the undersigned, a notary public for Idaho, personally appeared Rebecca L. Noah Casper, known to me to be the Mayor of the City of Idaho Falls, Idaho, the municipal corporation that executed the foregoing document, and acknowledged to me that they are authorized to execute the same for and on behalf of said City. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. ___________________________________ Notary Public of Idaho (Seal) Residing at: ________________________ My Commission Expires:______________ STANDBY EMS SERVICE AGREEMENT – 11.29.22 PAGE 6 OF 7 STATE OF IDAHO ) ) ss. County of Bonneville ) On this __________________day of _________________, 2022, before me, the undersigned, a notary public for Idaho, personally appeared ____________________, known to me to be the ________________ of the Centennial Management Group of Idaho, LLC., dba Mountain America Center, and acknowledged to me that they are authorized to execute the same for and on behalf of said company. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. ___________________________________ Notary Public of Idaho (Seal) Residing at: ________________________ My Commission Expires:______________ STANDBY EMS SERVICE AGREEMENT – 11.29.22 PAGE 7 OF 7 Attorney- Fall Creek Written Decision  BEFORE THE COUNCIL OF THE CITY OF IDAHO FALLS, IDAHO In the Matter of Fall Creek Homes Impact Fee Appeal Findings and Conclusions This matter comes before the Idaho Falls City Council as an appeal from Fall Creek Homes (“Fall Creek”) on the requirement to pay an impact fee on thirteen (13) lots pursuant, pursuant to Idaho Falls City Code § 10-8-10. The lots at issue are 5822 Lochsa Street, 5847 Lochsa Street, 5877 Lochsa Street, 5904 Lochsa Street, 5930 Lochsa Street, 5931 Lochsa Street, 148 Hideout Drive, 176 Hideout Drive, 190 Hideout Drive, 206 Hideout Drive, 220 Hideout Drive, 232 Hideout Drive, and 144 Cold Springs Drive. Fall Creek paid impact fees associated with 5930 Lochsa Street and 5931 Lochsa Street under protest on August 22, 2022. Fall Creek then requested this appeal on October 12, 2022, seeking a determination by the Council that no impact fee was owed on any of the thirteen (13) lots and requested that the Council direct that a refund be issued for the impact fees assessed on the two (2) lots paid under protest. The Council considered this appeal in a duly noticed Council meeting on November 22, 2022. After reviewing the testimony, the documents submitted, the City’s Impact Fee Code (Idaho Falls City Code Title 10, Chapter 8), the applicable law, and Fall Creek’s arguments, the Council makes the following findings: 1. All of the lots at issue in this appeal are part of the Southpoint Division 11 Subdivision. Southpoint Division 11’s preliminary plat was submitted to the City on December 23, 2020, which began a series of staff reviews. While the preliminary plat was still under review, a final plat was submitted to the City on April 24, 2021. The preliminary plat was approved on September 28, 2021. The final plat was approved on April 14, 2022. In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 1 of 9  2. On March 29, 2022, City staff approved Fall Creek’s engineer’s public improvement cost estimate of One Million Seven Hundred Eighty-One Thousand Five Hundred Ninety-Four Dollars and Ten Cents ($1,781,594.10). This estimate set the value for Southpoint Division 11’s Guarantee of Completion, which is required under Idaho Falls City Code § 10-1-12 to be paid. If the financial guarantee is not paid, § 10-1-12 requires that no building permit shall be issued. However, the financial guarantee was not paid until June 2, 2022, because, it appears that Brad Pickett, who initiated the Southpoint Division 11 subdivision, contested some of the public improvements that were required (including a requirement to extend sewer and stormwater lines). 3. On May 1, 2022, the City’s impact fee requirements became effective. Because of a delay in publishing the notice and hearing required for the impact fee schedule, no impact fee was assessed until June 1, 2022. 4. From May 6, 2022 through May 9, 2022, Fall Creek submitted various documents and information to apply for a building permit for the thirteen (13) lots at issue in this appeal. These submissions included architectural plans, site plans, roof truss designs, and other construction documents. The submissions did not include the public improvement financial guarantee for Southpoint Division 11 and the financial guarantee had not yet been paid. 5. On May 27, 2022, City staff completed its review of the submitted documents but did not issue permits because the public improvement financial guarantee had still not been paid. 6. On June 15, 2022, Mr. Pickett and the City Engineer reached an agreement on the disputed required public infrastructure and Mr. Pickett requested a revision to the Subdivision Guarantee. With the approved revisions, the cost estimate of the public improvements was reduced to $1,717,878.80. In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 2 of 9  7. On June 22, 2022, the public improvement financial guarantee for Southpoint Division 11 was paid. 8. On August 22, 2022, Fall Creek paid the impact fees for 5930 Lochsa Street and 5931 Lochsa Street under protest. 9. On September 2, 2022, Fall Creek timely filed this appeal. 10. Despite the fact that Idaho Falls City Code § 10-8-10(C) requires an appeal hearing within thirty (30) days, the hearing for this appeal was held November 22, 2022. ISSUES ON APPEAL Fall Creek raises the following issues on appeal: 1. That Fall Creek is not subject to the impact fee because the City’s impact fee was illegally adopted. 2. That Fall Creek was not subject to the impact fee that took effect on June 1, 2022, because its application was submitted before the effective date. 3. That Fall Creek’s appeal must be granted because the City deprived Fall Creek’s due process rights to an appeal by the City’s delay in scheduling the hearing for this appeal. 4. That the City may not “double dip” on collecting impact fees for the lots in Southpoint Division 11 because the City previously assessed a road and bridge fee for the development. ANALYSIS This decision addresses Fall Creek’s arguments in turn. In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 3 of 9  1. The City’s impact fee schedule is incorporated as part of the City’s impact fee regulations itself. At the outset, Fall Creek asserts that City’s impact fees are illegal because the City’s Impact Fee ordinance does not contain a “fee schedule.” Fall Creek asserts that Idaho Code § 67-8204(17) requires that a fee schedule must be set out in the text of Idaho Falls City Code Title 10, Chapter 8. Idaho Code § 67-8304(17) states “A development impact fee ordinance shall include a schedule of development impact fees for various land uses per unit of development.” Idaho Falls City Code Title 10, Chapter 8 complies with this requirement because it conditions the payment of impact fees according to the City’s impact fee schedule. IFCC § 10-8-5(C)1. The impact fee schedule is, by reference, incorporated and integrated with the City’s Code of Ordinances, including the City’s impact fee regulations, and complies with the state statute. The City notes that it is not the only Idaho city that has taken this approach. 2. Fall Creek’s building permit application was not complete until the public improvement financial guarantee for Southpoint Division 11 had been paid on June 22, 2022. It is well established in Idaho’s law that land developers, including Fall Creek, are entitled to the law in effect at the time they submit a complete land use application. E.g., Cooper v. Ada Cnty. Comm’rs, 101 Idaho 407, 412 (1980). No impact fee could have been assessed prior to June 1, 2022, when the City’s impact fee schedule became effective. The remaining question is when Fall Creek submitted its building permit application. 1 A fee payer required by this Chapter to pay an impact fee may choose to have the amount of such impact fee determined pursuant to either the fee schedule or subsections (D) through (F) of this Section. If the fee payer chooses to have the amount of such impact fee determined pursuant to subsections (D) through (F) of this Section, such impact fee shall be subject to the adjustment described in this Chapter, if applicable. If the project is a mix of those uses listed on the fee schedule, then the impact fees shall be determined by adding up the impact fees that would be payable for each use as if it were a freestanding use pursuant to the fee schedule. (emphasis added). In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 4 of 9  The City has adopted the 2018 Edition of the International Building Code (IBC). Section 105.3 of the IBC states that a building permit application shall: 1. Identify and describe the work to be covered by the permit for which the application is made. 2. Describe the land on which the proposed work is to be done by legal description, street address or similar description that will readily identify and definitely locate the proposed building or work. 3. Indicate the use and occupancy for which the proposed work is intended. 4. Be accompanied by construction documents and other information as required by Section 107. 5. State the valuation of the work. 6. Be signed by the applicant, or the applicant’s authorized agent. 7. Give such other data and information as required by the building official. IBC Section 105.3(7) states that the City may require additional items for a complete application. Indeed, one of these requirements is set forth in IFCC § 10-1-12, which requires that a public improvement financial guarantee must be paid “prior to the issuance of building permits within a subdivision.” An applicant for a governmental permit only obtains a protected interest in the permit when the City lacks the discretion to issue the permit and the applicant has fulfilled all the statutory requirements for the application. Ben Lomond. Inc. v. City of Idaho Falls, 92 Idaho 596, 602 (1968). Issuance of a building permit is a ministerial act. City staff lack discretion when issuing a building permit. If an application is received by City staff that contains all the documents and statutory requirements to issue the permit, then City staff must issue the permit. Fall Creek erroneously asserts that it submitted an application that contained documents and information sufficient to satisfy items 1 through 6 of the IBC § 105.3 for all thirteen (13) lots (between May 6 through May 9) and that its application was, therefore, complete before the impact fees became effective on June 1, 2022. Fall Creek’s application was deficient and incomplete in at least one respect - the Southpoint Division 11 financial In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 5 of 9 guarantee had not been paid. At the appeal hearing, Mr. Pickett testified that he knew that the financial guarantee had not been paid and that he knew that it was required to be paid prior to the issuance of the building permit. At the hearing, but not in its written request for appeal, Fall Creek indicated that it was independent from Mr. Pickett, who was the developer of the subdivision, and that Fall Creek’s application, as the builder, could not be burdened by Mr. Pickett’s failure to pay the financial guarantee. The impact fee regulations place the burden on paying the impact fee on whoever applies for a building permit. IFCC § 10-8-6(A) (“all fee payers shall pay the impact fee as provided by this Chapter to the Fee Administrator following application for a building permit . . .”). In addition, the City’s impact fee regulations consider “builders” to be developers. IFCC § 10-8-4 (“DEVELOPER: A person who subdivides or proposes to subdivide land, whether as an owner or an agent of an owner, and any person who installs improvements or structures on such land.”) (emphasis added). As the developer applying for a building permit, Fall Creek was obligated to comply with all requirements in its application for a building permit, including the obligation to ensure that the financial guarantee had been paid. In this case, Fall Creek did not ensure that the financial guarantee had been paid, and as a result, its application was not complete until the financial guarantee was paid on June 22, which is after the impact fees were in effect. As a result, Council finds that Fall Creek was subject to the impact fee. 3. By delaying Fall Creek’s appeal hearing, the City deprived Fall Creek’s due process rights which requires that the City adjust the impact fee owed. Fall Creek did not receive a timely hearing for its appeal. City’s impact fee regulations require that any fee payer who timely files an appeal be provided a hearing before this Council with thirty (30) days of the filling of the appeal. IFCC § 10-8-10(C). Fall Creek filed its appeal on In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 6 of 9 September 2, 2022, and should have received a hearing no later than October 2, 2022. Despite the City’s requirement, this appeal was not heard by this Council until November 22, 2022. Because of this delay, Fall Creek asserts that this Council must affirm its appeal, regardless of the appeal’s merits. This Council notes that the City’s impact fee regulations does not address the consequence of a delayed appeal hearing. However, Council finds that the delay in scheduling the hearing was a due process violation. The question, therefore, is the appropriate remedy to be applied. Delay in an administrative hearing raises due process concerns. Bell v. Idaho Transp. Dept., 151 Idaho 659, 671 (Ct. App. 2011). In determining whether a procedural delay violated due process, the Council examines the harm caused by the delay and whether there was a justification for the delay. Id. This Council finds that there is not a sufficient justification for the delay. However, Fall Creek did not articulate any particular harm that was caused by the delay of the hearing, apart from its general assertion that the delay was so prejudicial that the appeal should prevail regardless of the merits. In our determination, Fall Creek’s certainty as to whether it owed the impact was approximately delayed for ten percent (10%) of the year. Thus, pursuant to this Council’s ability under IFCC § 10-8-10(D) to modify the amount of the impact fee in the event of the Fee Administrator’s error, Council finds that the Fee Administrator erred in failing to schedule the hearing before this Council within the time limits set by the City Code and orders that Fall Creek’s impact fee on the thirteen lots be reduced by ten percent (10%) as a remedy for the delay. 4. City may not “double dip” on offsetting the impacts on Southpoint Subdivision 11 by collecting an impact fee and road and bridge fees. Fall Creek argues that the City cannot collect an impact fee and certain development fees assessed in the City’s development agreement for Southpoint Division 11 because both the fees assess in the development agreement and impact fees are designed to offset the In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 7 of 9 development’s impacts to public infrastructure. The intent of the City has never been to “double dip” or to profit off of development in the City. Instead, it is the City’s policy “that new growth and development in the City pay its proportionate share of the costs of system improvements for Public Facilities necessary to serve new development.” IFCC 10-8- 11(E); see also Idaho Code § 67-8202. At the hearing, City staff indicated that no developer fees had yet been paid in this matter. Mr. Pickett asserted that a portion of the road and bridge fee had already been paid. To the extent that the City has collected any developer fees pursuant to the development agreement, this Council orders that the impact fee owed on the thirteen (13) lots be reduced by the amounts already collected and that payment of the impact fees, due from Fall Creek, constitutes full compliance with the Southpoint Division 11 Development Agreement’s fees. DECISION Based on the above, the Council decides that Fall Creek’s appeal is granted to the extent that Fall Creek’s hearing was delayed and that the City cannot charge impact fees and development fees in the Southpoint 11 Subdivision Development Agreement. We order that the impact fees owed on the thirteen (13) lots be reduced by ten percent (10%) and, in addition, that such fees be reduced by any development fees collected under the Southpoint Division 11 Development Agreement. Dated this ___ day of December, 2022. _______________________________ _______________________________ Michelle Ziel-Dingman Lisa Burtenshaw Council President Council Member In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 8 of 9 _______________________________ _______________________________ Jim Francis John Radford Council Member Council Member _______________________________ _______________________________ Thomas Hally Jim Freeman Council Member Council Member In Re: Fall Creek Homes Impact Fee Appeal Findings and Conclusions Page 9 of 9