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Challenge to Hill Rd. subdivision goes in front of Idaho Supreme Court

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The Northwest Neighborhood Association’s fight against the Prominence subdivision came to the Idaho Supreme Court this week. 

On Thursday, Brian Ertz stood before the Gem State’s highest court to make the case that Boise City Council illegally approved the over 226-unit subdivision on Hill Road Parkway proposed by CBH Homes and Trilogy Development. This is the latest chapter in the five-year-long fight against the project, which has spanned through multiple proposals, hours of late-night Planning & Zoning Commission and City Council hearings and a stint in Ada County’s Fourth District. 

A judge in Ada County sided with the city last summer and the neighbors appealed it to the higher court hoping for a different outcome. 

Brian Ertz, the attorney representing NWNA, argued several concerns the neighborhood has with the project, like it’s impact on the use and enjoyment of the property owned by neighborhood association members, harm from decreased fire service in the area due to the development and procedural questions during the approval process. 

And on the opposing side, Debra Nelson represented CBH Homes and Deputy City Attorney James Smith argued on the behalf of the City of Boise that there was no harm for the project and the city council acted appropriately when voting to approve it in 2019. 

A decision in the case will come at a later date. 

Should Eagle have been notified?

Justices had lots of questions for Ertz about his argument that the city didn’t properly notify the Eagle Fire District about the application. 

During his arguments, Ertz referenced comments from a deputy fire chief at a Planning & Zoning Commission hearing stating the project would not have a 4-minute fire response time or be 1.5 miles from a fire station, which are recommended in Boise’s comprehensive plan. When City Council went to approve the project, they heard testimony from then Fire Chief Dennis Down about how the area would be served by Eagle Fire District to keep the neighborhood safe even if a Boise didn’t have a station in the area. 

He said at the time, a member of the NWNA noted Eagle Fire should have had to weigh in on the project if they were going to be a big part of how the project is served. 

“In response, the VP of the association, a layperson, who is not a lawyer said the obvious which is ‘nobody’s asked Eagle’,” Ertz said. “When you look at procedural at code,  all planned use applications requiring public hearings should be referred to all political subdivisions providing services to the site for review and comment.”

Prominence Boise
A 2018 rendering of the proposed Prominence Subdivision in NW Boise.

Justice Colleen D. Zahn questioned Ertz on this matter, saying that this isn’t evidence that the NWNA raised a due process question during the hearing. 

“I’d agree with you if the VP said ‘look the code says right here, you should be referring to this and you haven’t, but that’s not what was argued,” she said to Ertz. “What was argued was ‘we don’t know if Eagle can do this or not’, which seems distinguishable from “‘you have to ask Eagle before you make this decision’.”

Justice Gregory W. Moeller also questioned Ertz on his argument. 

“Are you saying it wasn’t enough for the Boise Fire Chief to testify ‘well Eagle is going to cover this’?” He said. “Boise needs to bring in outside of their own jurisdiction another jurisdiction’s fire chief to come in and say the same thing?”

“No,” Ertz said. “Boise must refer that application to Eagle Fire. It’s not a failure if Eagle doesn’t respond or someone short of the chief or the deputy does respond, but Eagle needs to be notified that this development is happening and provide the opportunity to review and comment.”

City, developer argue neighbors cannot prove harm

The developers and the city say the neighborhood’s arguments are moot for several reasons. 

Nelson, representing CBH, said to win the case the neighborhood needs to prove both that the Boise City Council erred in their procedure when approving the project and it will specifically harm the substantial rights of specific property owners. She argued the neighbors hadn’t met that standard, but instead have just alleged general harm because of the density of the project. 

After a lengthy back and forth about if the court should only focus on the rezone application for the project or the planned unit development for it as well, Nelson contended the neighbors’ argument about all of the new homes impacting fire service because it was only 30 more allowed than the 100 a developer could build with the current zoning. 

This figure doesn’t take into account the 96 apartments that could be approved on the site with an additional conditional use permit once Fire Station 13 is built in the area

Prominence subdivision Boise
Prominence subdivision Boise. Via Jensen Belts Associates.

“It fell into the trap of the discussion we just had about (another case) of ‘well the general magnitude of the project could impact fire service’ and ended there and I think that’s the wrong inquiry,” she said. “Here we don’t have significant magnitude when you really look at what the difference is and this court is very clear you have to have an impact to a substantial right and petitioners have not demonstrated they have a substantial impact to their property and to any one of their individual properties.”

Smith, representing the city, continued to refute Ertz’s arguments in his comments. One of NWNA’s points is that they feel City Council approved the project with new information that wasn’t considered in P&Z and should have been sent back to start over, but Smith says the city is allowed under the code during a rezone to consider any evidence it chooses. 

And, he said the new evidence came from changes to the project made at the neighborhood’s request. 

“There’s no authority that as a matter of procedural due process something went wrong here,” Smith said. “They can’t make that out here because the petitioner had notice of the proceedings, had the transcribed record and had the opportunity to present and rebut evidence throughout the hearing. In that participation and in seeing the application and comment on it and working with the applicant team to revise it, they helped produce the very new evidence that the neighborhood complained of when council made its decision.”

Margaret Carmel - BoiseDev Sr. Reporter
Margaret Carmel - BoiseDev Sr. Reporter
Margaret Carmel is a BoiseDev reporter focused on the City of Boise, housing, homelessness and growth. Contact her at [email protected] or by phone at (757)705-8066.

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