A story BoiseDev members got first.
Boise’s Northwest Neighborhood isn’t done fighting the Prominence subdivision on Hill Road Parkway.
On Wednesday morning, Northwest Neighborhood Association lawyer Brian Ertz squared off with attorneys from the City of Boise and Trilogy Development in court. He argued the Boise City Council illegally approved the 226-home neighborhood in October 2019. The neighborhood filed for Judicial Review of the development by the District Court after Boise City Council unanimously approved the project and refused to reconsider their vote.
A long battle
Ertz argued the city violated the neighborhood’s due process rights during the series of hearings on the project by allowing new evidence to be considered by the council before their vote, didn’t allow the neighborhood to rebut the evidence properly, and the loss of the fallow farmland to development would damage the nearby neighbors’ quality of life.
The Northwest Neighborhood Association has been fighting this project in lengthy hearings since late 2017. After an hours-long hearing in July, a 60 day mediation period with the neighborhood, concessions from the developer, and more restrictions from the city council, the city approved the scaled-down project.
- A reduction in units from the original proposal of 307 units down to 226
- Additional pathways
- Reconfiguration of a three-story apartment building into multiple, two-story buildings
- Requiring an irrigation lateral to remain open
- Banning a certain type of tall white plastic fencing.
The city’s Parks and Recreation Department also acquired a portion of the land from the developer to preserve as open space.
But, the neighborhood is still not pleased with the decision.
NWNA: Fire presentation violated code
This decision was an appeal hearing, which means Boise City Council was reviewing whether or not the Planning & Zoning Commission made an error when it voted earlier in the year to turn down Prominence. The city is supposed to review information already in the record at these hearings and not take in new information.
Ertz said the city ran afoul of this when the council closed the public hearing and then called up then-Fire Chief Doan to testify on fire service issues in the area and present a newly signed memorandum of understanding between the Boise Fire Department and Eagle Fire District to mutually respond to each other’s calls if necessary.
“Essentially, what the record reflects is that all NWNA was made aware of was there was going to be a hearing where the council was going to deliberate on the record that had been previously closed,” Ertz said. “There was no announcement that new evidence was solicited, presented, or otherwise considered, and that’s important, both in the context of NWNA’s arguments regarding council’s procedural violations in this court’s assessment of whether due process safeguards were preserved and whether council exceeded its authority.”
James Smith, attorney for the City of Boise, disagreed. He said the neighborhood association was able to submit extensive written responses to the city about the project after the new evidence was presented before the final approval and expressed no concerns or objections to the process at the time. Instead, he said they stuck to only arguing against the merit of the proposal.
“At the subsequent hearings, they critiqued the new design and came with extensive arguments, including wildlife habitat… and said quote ‘we’re not asking for a whole lot here,’” Smith said. “Contrary to their argument today, the Northwest Neighborhood Association was not limited to presenting new evidence. Council received and added to the record Northwest Neighborhood Association’s comments on the redesign and further developing Northwest Neighborhood Association’s argument that council should order more changes or deny the project.”
Fire service concerns
Ertz also raised the neighborhood’s ongoing objection to the lack of a fire station in Northwest Boise, which he said was part of the evidence the Planning & Zoning Commission relied upon to deny the project. He argued the Boise Comprehensive Plan says the city’s standard of coverage is a 4 minute response time, and without a fire station in the area close to the fire-prone foothills, that isn’t being met in the area.
He also said the city failed to have Eagle Fire District review the project, even though they would be responding to the area through the mutual aid agreement.
“Development is inappropriate in this area, and the high density of this project would burden the fire response even more because of the density of the development and the number of new residences that would now be subject to that vulnerability,” he said.
The issue of whether or not the city code mandates a four-minute response time has been a major argument bubbling up from activists in recent years. The Northwest Neighborhood Association frequently points to an ordinance passed in the 1990s under former Mayor Brent Coles that legally requires a 4fourminute response time and a certain coverage for fire stations under the code.
But, fire officials and city attorneys say this standard in the comprehensive plan is only a goal and not something development can be denied upon. Smith said using this as a legal argument to deny developments would give developers the argument to say the denial was arbitrary and might not stand in court.
“What’s in the comp plan, that’s not the department’s in practice standard, which is a somewhat higher response time,” Smith said. “Frankly, that time cannot be used to deny development across the city because if someone can say ‘well we have evidence that this time doesn’t live up to the standard,’ then every development must be denied.’”
Developer alleges no evidence of harm
Deborah Nelson, attorney for Trilogy, referenced neighborhood concerns raised in Ertz’s brief about how the loss of agricultural land in the area, wildlife habitat in the area, the development’s proximity to a historic trail, and traffic from all the new residents would impact the Northwest Neighborhood Association’s current residents. But, she said these were general statements and not backed up by evidence of how exactly this would specifically harm the residents.
“There is a minimal section on standing that lists a number of stated harms, none of these identify a location of where the individual lives, how approximate they are to the development, nor does it identify the particular harm they are suffering,” Nelson said. “The project site was already zoned for residential development, and much of the surrounding land is already developed with residential subdivisions with the same or similar zoning as this proposed project.”
A judge will review the case and make a decision about the development in the coming weeks.