The Five Appeals Challenging NSA’s CUP

Here are the five appeals that the Moscow City Council will hear tonight. I pulled them off the city website (if the link is dead, it’s because Moscow’s URLs don’t work correctly; navigate to the packet from here). Each appeal is extremely well written and each appellant makes outstanding arguments. I would be shocked if Council doesn’t remand the case back to the Board of Adjustment.

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To: Moscow City Council
CC: Laurie Hopkins, City Clerk

Re: Appeal, Board of Adjustment Approval of New Saint Andrews College Conditional Use Permit for 112 N. Main Street (CJ’s)

Dear Councilors,

As an affected person living within ½ mile of the proposed college, I am writing to appeal the recent Board of Adjustments’ (BOA) decision to approve a Conditional Use Permit (CUP) for 112 N. Main Street, specifically with regard to Criterion 4 of the Relevant Criteria and Standards (RCS). The Board did not have sufficient information to affirm that “the location, design, and size of the proposed use is adequately served by existing streets, public facilities, and services.”

As noted in BOA meeting minutes of April 25, “staff provided parking data obtained at 9 am and 2 pm over a five-day period: Commissioners expressed the desire to also have had mid-day (11:30–2pm) parking data”1. A five day period is a very small sample size that may prevent full, representative data collection, and as the Commissioners themselves note, the data do not include other critical windows of time, including lunch hour retail and restaurant business, school and day-care transportation, and evening rush hour. This insufficient information prevented the Board from accurately assessing the current parking demands in the Central Business District. The decision to approve the CUP is one of considerable magnitude and should be considered with access to full information.

While some data were insufficient, other data were incorrect. The percentage of the Central Business District dedicated to educational use, with approval of the CUP, was cited at 3.4%2. This figure does not include the square footage of the existing New Saint Andrews parking lot on 6th and Jackson, rendering the figure presented for approval to the Board incorrect. The Board should reconsider the CUP with correct data that accurately represents the existing percentage of CBD dedicated to educational purposes, and allow those data to inform any predictions of percentage of future use.

In addition to considering insufficient data for current parking demands in the Central Business zone, the premise for comparison with existing parking is flawed and should be reconsidered. Meeting minutes note “potential parking increases were compared to: 1) the prior uses of a dance hall and two bars; 2) the approved residential conversion that was not carried out; and 3) parking requirements for a mixture of retail and office use”. This comparison is misleading: dancehall and bar patrons drive at night, if they drive at all, and park accordingly. Residences within the CBD do not require parking accommodation, although any potential residential conversion of 112 N. Main would necessarily have a small impact on parking due to the limited number of units in the building. Parking requirements for a mixture of retail and office use is explicitly in line with the Comprehensive Plan and as indicated in minutes,” Monson confirmed with staff there was no parking requirement for any business within the Central Business District”.3 In all cases, parking demands and requirements for these groups is inherently and explicitly different than the parking demands and requirements for an educational institution, and comparing them is misleading. For an accurate assessment of the potential parking impact, the Board must consider the existing parking impact of similarly categorized educational institutions in the Central Business district. To support this claim, BOA member Jerry long “asked if data existed on current NSA parking impacts because this proposal would double the effects. Cash didn’t have that data”.4 Comparing dissimilar, inaccurate data while lacking similar, accurate data prevented the Board from making a fully informed decision.

The Board of Adjustments’ calculations for mitigating the parking impacts of the approved Conditional Use Permit should also be reconsidered. The Board recommended the approval of the CUP under the following conditions:

  1. The Applicant be required to provide 47 off-street parking spaces within approximately ½ mile of the subject property subject to the approval of the Zoning Administrator.
  1. The Applicant shall be allowed to phase in the off-street parking requirement by providing 50% of the required parking mitigation upon occupancy of the building and the remaining 50% to be provided when enrollment of the Educational Institution use upon the subject property reaches 150 FTE students are enrolled in educational programs offered upon the subject property, or five (5) years passes from the date of the issuance of the certificate of occupancy of the building, whichever occurs first.5

If the above conditions are followed by letter, and acknowledging that faculty will by necessity be hired at capacity before the educational institution has reached full enrollment, New Saint Andrews will be able to provide 23.5 additional parking spots for 194 additional people, comprising 150 students and 44 faculty, for a maximum duration of five years. This quantitative figure paints a different picture than the descriptive guidelines indicated above. The Board themselves disagreed over the amount of parking required; BOA member Marshall Comstock noted that “he appreciated the staff recommendations to provide additional parking but thought it wasn’t enough and should perhaps be twice as much”6. In addition, the stipulation that parking be located within ½ mile of the subject property does not mitigate parking demands downtown. Parking in any dedicated New Saint Andrews College parking lot cannot be mandated for students, and it is highly probable that students will choose the closest parking spot to their destination, effectively rendering moot the Board’s condition of 47 additional off-street parking spaces.

Even if the above concerns are successfully defended and addressed, the impact of additional parking on Criterion #7, “the proposed use will not be in conflict with the Comprehensive Plan”, cannot be overstated. When asked about the college’s plan to find parking spaces for students, New Saint Andrews President Ben Merkle responded “that some of it would be accommodated in their existing lot and they were negotiating other locations that weren’t appropriate to divulge at this time.”7 As BOA member Jerry Long noted, “without knowing where that parking would be the Board couldn’t know the cumulative impact on the Central Business District.”8

The Board has made many thoughtful deliberations on the subject of this Conditional Use Permit, but they deliberated on insufficient and incorrect information. The proposal as written did not satisfy Criterion 4 of the RCS and therefore cannot satisfy Criterion 7, and as such, should be reexamined with accurate and sufficient data and information. I request a remand to the BOA, given the concerns I outlined above.

Thank you for your consideration.

Sincerely,
[redacted]

 

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May 10, 2017

RE: LUP2017-0007

This is an appeal to City Council made pursuant to MCC 4-8-6 of the final decision of the Board of Adjustment to approve a Conditional Use Permit for a proposed educational institution located at 112 N Main Street in the City of Moscow within the Central Business Zoning District (CBD) per MCC 4-3-5(D)(8). The undersigned appellant is an affected person as defined in MCC 4-11-9(5). Appellant is a property owner in the city of Moscow whose interests will be affected by the final decision of the Board of Adjustment. The City Public Works Department stated in their comment on the project that, “The limited availability of private parking may prove challenging for this type of use at this scale in the Downtown Business District.” Appellant’s use and enjoyment, as a resident of the city, of the amenities provided by Moscow’s vibrant downtown core will be affected by the potentially extreme shortage of parking during events utilizing the proposed 680 seat auditorium. Appellant believes that this may affect the willingness of non-residents to visit and participate in events in Downtown Moscow (specifically Farmer’s Market) leading to tax-paying businesses being unwilling to locate in Downtown Moscow thereby affecting tax base and ultimately Appellant’s property taxes.

The basis for this appeal was identified in the comments of the City of Moscow Public Works Department regarding the application:

“The limited availability of private parking may prove challenging for this type of use at this scale in the Downtown Business District. Even with the applicant’s plan to procure 40 parking spaces and construct bike storage facilities, patrons of the auditorium will be reliant upon public parking on the City Streets as are other businesses within the Central Business District. The proposed development will add competition with the patrons of other businesses and downtown residents for the available public spaces near the building during events in the auditorium.”

While the application identifies very limited use for the proposed auditorium by NSA, it does not stretch the imagination to consider the other uses to which a 680 seat auditorium (comprising a very substantial percentage of the square footage of the proposed project) and meeting rooms/ classrooms could be put when not needed for the uses specifically identified in the application. Because of the proximity to restaurants and other amenities located in the CBD this would obviously be a desirable location for conferences and other uses either organized by NSA or other groups. Nor does it stretch the imagination to consider the impact that an event that could fill a 680 seat auditorium would have on downtown parking on, for instance, a Saturday during Farmer’s Market season.

It bears mentioning that auditoriums (and conference centers) are not listed as Permitted Uses in the CBD under MCC 4-3-5(B) or Conditional Uses under 4-3-5(D). One option that appellants would commend to the Council is to reverse the decision of the Board and deny the current application and begin the process of amending the Zoning Code to take cognizance of auditoriums and similar large scale development in the CBD. Appellant (and others) feel that affected persons and the public at large should have an opportunity to participate in a discussion about the impact (on the CBD and adjoining zones) and appropriateness of large scale development, specifically auditoriums and conference centers, proposed to be located in the CBD.

MCC 4-3-6(D)(8) requires that, prior to granting a Conditional Use Permit for an Educational Institution in the CBD consideration be given to, among other issues, traffic and parking impacts of the proposed use. While the Planning Division considered the parking impact of the educational aspect of the proposed use they did not consider the impact of the uses of the auditorium that were specifically mentioned in the application or uses which, although not specifically mentioned in the application, would not be proscribed by the Permit. The impact of the auditorium should have been considered: this is implicit in MCC 4.6.5(C)(1)(e) which recognizes that off-street parking must be provided for according to the schedule for an auditorium incidental to a school.

While uses in the CBD are exempted from compliance with the parking schedule contained in MCC 4-6-5(E) the Planning Division used the schedule to calculate the mitigation to be required under the Permit. Since the department did not consider the impact of the auditorium their calculation is clearly in error. Using the method adopted by the department an additional 227 spaces (1 per 3 seats) would be required to mitigate the impact of the use on downtown parking. Considering that the auditorium could be in operation concurrently with and independently of the operation of NSA it seems clear that a total of 274 off-street parking spaces would be required to mitigate the impact of the proposed use.

Appellant requests that the Council reverses the decision of the Board of Adjustment concerning off-street parking and incorporates the parking mitigation requirements outlined above into the Permit.

[redacted]

 

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May 10, 2017
To: Moscow City Council:

Re: Appeal of the Board of Adjustment Decision on a Conditional Use Permit for New Saint Andrews College/CJs property

Dear Councilors:

I am appealing the Moscow Board of Adjustment April 25 approval of a conditional use permit for New Saint Andrews College.

I am most concerned that in their deliberations on this CUP, the board did not fully consider the “cumulative impacts of and proximity to existing schools, commercial schools, and educational institutions in the vicinity and impact on the availability of retail and office space,” as required by MCC Title 4, Section 3-5(D8).

There were several cumulative impacts of this proposed educational institution that were raised at the April 25 hearing but were not adequately considered by the BOA:

  1. The board did not have enough information and did not adequately address the cumulative impact of the proposal on the availability of a finite amount of retail and office space in the downtown CBD. The use of parking and the building for educational uses permanently removes the retail and office space from the CBD.
    • Trying to look at the cumulative impact of the educational institution on the CBD, BOA member Jerry Long specifically requested clarification on the taxable and non-taxable portion of NSA current building and its parking lot.
    • The board moved forward with a decision, considering only the impact of the building square footage on the CBD when parking may add and double that cumulative impact, which was not considered. Without the adequate information about parking both at the current NSA building and the proposed NSA building, the board was unable to determine fully the cumulative impacts of an educational institution proposal and whether the proposed use would be in conflict with the Comprehensive Plan.

    At the April 25 hearing, several people testified to the vibrancy and recent growth of downtown, which makes it critically important to refrain from removing retail space there.

  1. The board did not adequately consider the cumulative impact of the proposed educational use in terms of how much educational use is appropriate in the CBD.
    • The CUP proposes to expand NSA to two buildings in the CBD and to more than double its enrollment to 500 students.
    • Several residents at the hearing expressed that educational institutions were historically not part of the CBD. In her email to Bill Belknap on March 27, 2017, submitted as part of the public record for the April 25 hearing, Rose Huskey pointed out that a 2006 CUP restricted the number of students attending NSA to 200 students “due to parking and related issues.”
      (https://www.ci.moscow.id.us records Meeting%20Packets%20%20Full/PKTBOA20170425.pdf,)
    • As included in the meeting packet, during the April 25 hearing, Ben Merkle, NSA president, said that NSA “wishes to expand to a second location to support the new music conservatory program and to increase overall enrollment to 500 students.” NSA’s Application for a Conditional and Special Use Permit (3/24/17) says that “New Saint Andrews College will increase overall enrollment from the current number of students and faculty and staff to 500 FTE students and 54 FTE faculty and staff.”
    • In its deliberations, the BOA did not discuss the cumulative impact of this increase in enrollment or set conditions on what appropriate limits for educational enrollment and facilities in the CBD should be, as it was obligated to do.
    • Furthermore, Merkle said, “NSA chose the location so students can reach both buildings by foot.” The BOA did not consider the impact of adding as many as 300 students to the existing New St. Andrews facility and did not call for a plan to ensure that the original CUP of 200 students will not be violated.
  1. The board did not adequately consider the cumulative impact of the proposed educational use on its vision for the CBD, as outlined in the city’s Comprehensive Plan and therefore was unable to satisfy the criteria that it not be in conflict with the Comprehensive Plan.

    At the hearing, NSA Academic Dean Tim Edwards compared a Moscow–NSA relationship to that of Oxford, England: “. . . the educational impact from this expansion wou1d allow increased educational space, practice rooms, and performance area all within the core of downtown. He compared this opportunity to Oxford University where town and gown exist together rather than cordoned off from each other.” (http://www.ci.moscow.id.us/records/Minutes/minBOA20170425.pdf)

    But Oxford is a city in England with an estimated 2015 population of 168,270. It is the 52nd largest city in the United Kingdom and one of the fastest growing and most ethnically diverse. (https://en.wikipedia.org/wiki/Oxford) Oxford is not Moscow, and our Comprehensive Plan describes a different vision for its downtown.

    A vision of Oxford in Moscow would dramatically transform the economic potential of downtown from the way it is described in the Comprehensive Plan (Chapter 6.12): “. . . the location, character, and quality of Downtown make it an ideal location for dining, entertainment, and specialty retail. Indeed, Downtown business owners noted that people come from as far as 100 miles away to the area’s unique retail stores and restaurants. Downtown is a source of community pride that contributes to the City’s exceptional quality of life (a “driver” for economic development”). In more specific economic development terms, Downtown is a center of gravity for the target industries of financial services, healthcare, real estate, and tourism. It is also a potential center for higher-end, residential-over-retail products positioned toward professionals and active seniors who do not want the maintenance responsibilities of single-family housing.”
    (http://www.ci.moscow.id.us/records/Planning%20%20Guides/Moscow%20Chapter%206,%20Economic%20Development.pdf)

    At the hearing, board member Jerry Long emphasized that, with the information before the board, he didn’t think the Board could satisfy #7 in the relevant criteria and standards — that the proposed use does not conflict with the Comprehensive Plan. “On the record before us, I think that we don’t have enough information to actually make a reasoned decision as to whether the cumulative impacts of this proposal will be too much. The City Council has given us the authority to determine when too much occurs. That’s the notion of cumulative impacts. We have to decide when there are too many educational institutions downtown.”
    https://www.ci.moscow.id.us/records/Minutes/minBOA20170425.pdf, p. 9.

For the reasons stated above, the matter should be sent back to the Board of Adjustment to more fully develop the record of relevant facts and to reconsider the scope and limit of the permit based on appropriate conditions.

Thank you for your consideration.

Sincerely,
[redacted]

 

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To: Mayor Lambert & Councilors,
Moscow City Council
CC: Laurie Hopkins, City Clerk City of Moscow

Re: Appeal, BOA Approval of NSAC Conditional Use Permit for 112 N. Main Street

Dear Mr. Mayor and Councilors,

This letter serves to appeal the Moscow Board of Adjustments’ decision to approve a Conditional Use Permit for 112 N. Main Street (LUP2017-0007) as applied for by New Saint Andrews College. In particular, several procedural questions were raised during the CUP review process that bears examination. At the April 25 meeting and BOA decision, five of seven board members were present, with three voting affirmatively to approve the CUP, effectively meeting quorum. As governed by Moscow City Code, the Board may take action without all members of the Board present; however, a decision such as this, which represents a significant change to the Central Business District and very well may have far-reaching impacts on future development, is best served by full participation by all members of the Board.

Statute § 3-5 D.8 states that “Applications for educational institutions shall be accompanied by a detailed, written description of plans, including present student enrollment, staff on site, site development and future enrollment growth and any phasing thereof.” The Conditional Use Permit submitted by New Saint Andrews College did not, and in fact could not, include these figures, and therefore should never have advanced to the hearing process. The burden of proof falls on New Saint Andrews to show that their application should be approved, not on the opponents to show why it should not be permitted. For this reason alone, the decision should be remanded to the Board for reconsideration. Additional issues of potential violation of relevant Procedural process follow.

Several important concerns and issues clearly require examination and, importantly, consideration. At the beginning of the meeting, Ryan Cash opened the orientation with a Powerpoint slide that listed 7 fundamental criteria apparently designed by the Board to orchestrate foci on critical issues by which to base acceptance or rejection decision. In particular, a majority of persons speaking in support of the CUP did not address these criteria at all, which may have influence Board Members interpretations of the merit of the proposed CUP. The decision to approve the CUP is one with lasting implications for the Moscow community, and should be made with full access to all relevant information and with as full participation of the Board as possible; unfortunately, this did not happen, and the decision should be remanded to the Board for reconsideration.

Further, it should also be noted that the Board members themselves asked staff for additional information on several points and additional time to consider during the April 25 meeting, yet proceeded to a vote that evening regardless. In addition, on the meeting of the Board dated May 1, Board member Laurene Sorensen requested that the approval of the Reasoned Statement be postponed until such time as she and Annette Bieghler-Lamadrid, with the help of City staff, could resolve technical difficulties that prevented them from accessing audio and video of the April 25 meeting. This motion failed to carry and was effectively denied. In this day and age of effective at-distance connectivity, dismissal of the potential inclusion of 2/7 of the board members appears to be an egregious act on the part of the other 5 board members.

Of particular interest, Mayor Bill Lambert is on record in the Moscow Pullman Daily News of April 18th 2017 stating that he anticipated appeals to the decision, seven days before the public hearing was held, potentially impacting BOA and affecting hearing process testimony. He should recuse himself from further action, especially a tie-breaking appeal vote.

Finally, the handling of emails and communications from citizens submitted to the Board of Adjustments for consideration violated ex parte contact. BOA Chair Joe Bazzoli stated that while he himself read emails that were received from concerned parties after the 5-day cut-off period, he did not share them with the rest of the board. One member of the Board can not vote with information the other board members do not have; as the Idaho Public Service Handbook (IPSH) states, “when a matter is “quasi-judicial” in nature, such as an application for rezoning or for a subdivision, such an ex parte contact has the effect of compromising the decision maker’s ability to make an informed and impartial decision based upon information contained in the formal record.”1 According to ex parte, either all members of the Board should have read the emails, or no members of the Board should have read the emails. This is especially important in decisions such as these, which represent significant potential changes to the CBD. As the IPSH continues, “The rule prohibiting ex parte contact in quasi-judicial matters comes from the expectation that the decision makers should weigh only the evidence and issues formally before them and should not take into consideration personal matters or private influence as these taint the process of fair decision. Additionally, the public perception that the matter considered by the decision makers is being treated in a fair and even handed manner without regard to the individual participants is important to preserve the legitimacy of the process. The overriding principle is fairness to those affected by the decision.”2 These comments illustrate the necessity of having as fair and balanced a process as possible, which is not evidenced in the proceedings of the Board regarding unequal access to emailed comments by the public. Similarly, the Board’s decision at recess to omit emailed comments, despite previously committing to reading them, raises questions of procedure; as this was a public meeting, and not an executive session, this decision should not have been made in private.

In conclusion, while the Board has made a considered decision with good intentions regarding this CUP, the procedural questions brought forth regarding the overall application and approval process and subsequent result clearly demonstrate the need for the decision to be remanded to the Board for reconsideration.

Thank you for your time and consideration.

Respectfully,
[redacted]

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Appeal of the Decision of the
City of Moscow Board of Adjustment
on the
Conditional Use Permit Application for an Educational Institution Within the Central Business District,
112 North Main Street, by New Saint Andrews College

April 25, 2017 Public Hearing and May 1, 2017 Finding of Facts and Relevant Criteria and Standards

Moscow Ordinance 2005-33 states in regard to the Central Business District that for commercial schools and educational institutions specific consideration must be given to parking, safety, and nuisance issues, as well as cumulative impacts and proximity to existing commercial schools and educational institutions.

Considerable time was given to deliberating parking issues during the Board of Adjustment hearing on April 25, but Board decisions were based on incomplete and arguably faulty data. Some conditions to be imposed on parking were not justified and therefore should be deemed arbitrary. Safety and nuisance issues were brushed aside. Some cumulative impacts were considered, but the analysis was inadequate, and the cumulative impact of increasing enrollment allowed at the current New Saint Andrews College was not considered at all.

During the April 25 hearing, some Board of Adjustment members bemoaned the lack of sufficient information to make an informed decision.

As will be presented here, various instances of lacking or inaccurate information upon which to base a decision for this Conditional Use Permit application were documented during the April 25, 2017 Board of Adjustment hearing. Due to this, and other issues, the Moscow City Council should find that there is new material information which was not available at the time of the Board’s decision and that it is in the public interest to develop such information and therefor remand the Conditional Use Permit application back to Board of Adjustment for reconsideration.

[redacted]

Interaction with NSA’s 2006 Conditional Use Permit

MCC Title 4, Section 8-4(B) requires that the Conditional Use Permit application in question not be considered in a vacuum. Thus, its effect on the applicant’s current Conditional Use Permitted property should have been reviewed. This Conditional Use Permit application references conditions in the earlier New Saint Andrews College Conditional Use Permit (which is a part of the packet for the April 25 Board of Adjustment hearing).

In 2006 New Saint Andrews College wasn’t permitted as an educational institution for their building/property on Washington Street. At that time the Moscow City Council amended the zoning ordinance and granted New Saint Andrews College a Conditional Use Permit because New Saint Andrews College had already purchased the property due to improper information provided by the then Community Development Director.

On March 28, 2006, the Board of Adjustment granted to New Saint Andrews College a Conditional Use Permit to operate an educational institution in the Central Business Zoning District, subject to conditions. One of the imposed conditions was that the maximum number of full-time equivalent students shall not exceed 200. At that time New Saint Andrews College then-representative Greg Dickinson said that there was no intention to have more than 200 students. During the April 25, 2017 Board of Adjustment hearing, New Saint Andrews College president Ben Merkle stated that New Saint Andrews College currently has a student population of 165. (http://www.ci.moscow.id.us/records/Minutes/minBOA20170425.pdf)

According to Mr. Merkle’s testimony for the current Conditional Use Permit application, students are to use both campuses.

The Conditional Use Permit application in question proposes to treble the current student population of the college, to two and a half times the number of students allowed under the New Saint Andrews College 2006 Conditional Use Permit. This should have been addressed for the current Conditional Use Permit application.

Comprehensive Plan

Relevant Criteria and Standards criterion number 7 (“the proposed use will not be in conflict with the Comprehensive Plan. . .”) is not upheld by the granting of this Conditional Use Permit. The goal of the Comprehensive Plan is “to maintain a viable Central Business District that serves as one of the City’s major shopping areas, provide a pleasant environment for shopping and working, provide an opportunity for socializing, and act as a focal point for the community.” Two goals in the Comprehensive Plan are to maintain the Central Business District as a principal retail shopping area in Moscow and to provide adequate parking in the Central Business District for shoppers and employees.

The proposed use for this application would not help to maintain a viable Central Business District. It would remove potential retail space from downtown — not solely in the use of the subject property, but also by potentially limiting uses by other nearby properties. Moscow City Code 4-3-5(D)(8) directs that consideration be given to the impact of educational institutions upon the “. . . availability of retail and office space, especially at street level.” The Board noted that the subject building is not currently nor is it known that it has ever been utilized for retail or office uses. That observation is irrelevant and should not be a basis for permitting, the Code does not say that it applies only if the previous use was for retail or office purposes — it applies, regardless. Further, the former use of the subject property was a legitimate Central Business District use — entertainment. This building could be used for those uses in the future.

At the April 25 hearing the Board of Adjustment voted based on incorrect data. The percentage of the Central Business District dedicated to educational use was cited at 3.4%; this figure does not include the New Saint Andrews College parking lot at Sixth and Jackson Streets. This was determined in the Board deliberations during the hearing.

The Board should consider whether this application would be granted with the liberal conditions they imposed if Boise State University, Lewis Clark State College, North Idaho College, or the University of Idaho were the applicant. Would they then consider how many students can/should downtown accommodate at the expense of retail/entertainment/office uses?

This building, in addition to retail and entertainment possibilities, could accommodate offices, and residential space is permitted on second floors of Central Business District buildings. But, as an office or retail or entertainment establishment — even with residences upstairs- there would not be 300 people there at any one time during normal business hours disrupting the rest of downtown parking. New Saint Andrews could put residences upstairs- a more intensive full-time use than just the “college” use would suggest. This potential use should have been considered. At least a condition should be placed on this issue.

Board member Long asked staff whether the numbers presented as the amount of space used by existing educational institutions included the existing parking lot that is required as part NSA’s current permit. Staff responded that it was not included. Long suggested that since it is part of the existing facility and required to be part of that facility that it should have been included in the educational uses downtown. [May 01, 2017 Board of Adjustment meeting]

In noting two inadequacies, Long emphasized that “The record did not include in the assessment of space utilized by educational institutions . . . the existing NSA parking lot.” [May 01, 2017 3:25–3:46]

Noting inadequacies in the record, Board member Jerry Long emphasized that he didn’t think that the Board could satisfy the Relevant Criteria and Standards with the information before them. [May 01, 2017 meeting, 5:00–5:40]

Board of Adjustment decision based on incomplete/incorrect information provided

The Conditional Use Permit application should go back to the Board of Adjustment because they lacked necessary information, and had incorrect data on its effect on the Comprehensive Plan.

Parking and Traffic

Board of Adjustment member Jerry Long asked whether data existed on current New Saint Andrews parking impacts because this proposal would double the effect. Staff didn’t have that data.

Incomplete information was available to decision-makers.

A parking/traffic study was conducted at 9 a.m. and again at 2 p.m. over five days. Board member Jerry Long suggested that a mid-day parking study should have been done. Is this a sufficient study? It does not account for lunch traffic, after school hours, morning or evening business rush hour, or evening traffic from cultural events. Members of the Board of Adjustment desired information for a longer stretch of the day, say 11:30 to 2:00, likely a busier period for Moscow businesses. Where was the traffic studied? If it was just in the area of the building, that is certainly less than the area that would be impacted. New Saint Andrews College’s proposal envisions an auditorium/performance venue, thus it could be argued that evening rush hour traffic counts, availability of parking on Friday and Saturday evenings, etc., also are germane to the deliberation.

Section 2.4.2 of the Comprehensive Plan states that, “The City’s existing land development regulations exempt downtown uses from off-street parking requirements.” Whether parking is empirically a problem or not, the situation should not be exacerbated as new development and redevelopment occur.

There was no clear justification and little discussion of the proposed half-mile parking distance requirement imposed for the Conditional Use Permit under consideration.

The imposed parking space condition is arbitrary.

Board member Jerry Long stated that he had concerns with criteria #4 (parking) and #7 (compliance with the Comprehensive Plan) because he thought that creating more parking to satisfy criterion #4 conflicted with criterion #7. Creating more parking to deal with criterion #4 directly contradicts criterion #7, especially if other businesses/buildings/lots are purchased to accomplish this goal. He explicitly calls this out as being problematic. He stated that the application could satisfy neither criterion #4 nor #7, if the Conditional Use Permit requires 47 parking spaces, then it is in conflict with criterion #7.

Board member Joe Bazzoli pointed out that the Board cannot tell the applicant where to secure parking, it can only decide whether parking should be required and it’s up to the applicant to decide whether the project is still viable. Board member Long argued that the Board must assess what the applicant proposes in order to decide on the cumulative effect. The applicant did not provide information on their proposal for parking.

Board member Jerry Long stated that they don’t know where parking will be. If parking is downtown, will it be in conflict with criterion #7?

Mr. Long noted that “We didn’t do the traffic study at the time I thought we should do it. We don’t know how much space they are already taking so we don’t know what the parking needs should be. And then if we decide we know what the parking needs should be and try to remedy it we don’t know where it’s gonna be, so we don’t know . . . in fact we don’t know if it’s going to satisfy the needs in #4. And if it’s downtown we don’t know how it conflicts with #7.” [May 01 Board of Adjustment meeting, 6:41–7:02]

Board member Joe Bazzoli noted that they don’t know exactly how many parking stalls there will be and therefore there will be an unknown effect.

Board member Marshall Comstock noted that even if the Board assumes 47 parking spots is sufficient, they don’t know where they will be. Would they be downtown? How would 47 parking spots downtown affect the Central Business District?

Incomplete information was available to decision-makers.

During the May 1Board of Adjustment meeting Board member Bazzoli referenced testimony that Moscow has a successful Farmers Market even though the City eliminates three blocks of parking. He stated that that was very impactful — it was a huge deciding factor for him. [May 01 Board of Adjustment meeting, 13:30 ff] He notes that he can’t explain why there does not seem to be a parking problem for the Farmers Market.

Poor logic and no justification was used. Mr. Bazzoli’s observation is irrelevant and should not be a basis for permitting.

The Conditional Use Permit application should go back to the Board of Adjustment because they lacked necessary information on parking and traffic.

Safety

City of Moscow Ordinance 2005-33 states in regard to the Central Business District . . . that for commercial schools and educational institutions specific consideration must be given to parking, safety, and nuisance issues, as well as cumulative impacts and proximity to existing commercial schools and educational institutions.

At their April 25 hearing the Board of Adjustment dismissed criterion #6 — safety was not addressed: “No specific safety concerns have been identified. . .” No data and no analysis were provided. There was testimony regarding concern about hundreds of pedestrians crossing the dangerous crosswalks in the vicinity of the subject property. Have there been vehicle-pedestrian or vehicle-bike crash incidents? It is much harder to cross Washington Street on the crosswalk by the neighboring Corner Club in daylight (typical educational use time) on the blind curve than at night. After dark, one can use headlights for a bit more warning.

The Moscow City Council should find that there is material information which was not available at the time of the Board’s decision and that it is in the public interest to develop such information.

Cumulative Impact

City Code instructs the Board to avoid taking away retail space (specifically street-level space), and requiring more parking would take away space for potential retail business. Board member Long thought that there wasn’t enough information to determine the cumulative impacts of this proposal. He was troubled that the parking counts provided didn’t include mid-day (11:30–2:00) when downtown is probably busiest.

The Conditional Use Permit application in question proposes to more than double the size of the college as is allowed under the 2006 Conditional Use Permit, and students will utilize both campuses, thus potentially violating the conditions of the first permit, and effecting a cumulative impact not considered for the current Conditional Use Permit application.

The maximum number of students allowed through Conditional Use Permits or otherwise in the Central Business District should be addressed. There was no discussion by the Board of Adjustment and no justification presented for increasing the limit to the number of students that can be trained in downtown Moscow by New Saint Andrews College.

The Moscow City Council should find that there is material information on cumulative impact issues which was not available at the time of the Board’s decision and that it is in the public interest to develop such information.

Procedural Issues

There were a number of procedural issues that should cause this decision to be nullified.

One procedural concern is that the board made a decision at the April 24 hearing without any findings of fact to justify said decision on granting the Conditional Use Permit. The findings of fact were developed at a later meeting.

Other procedural issues are brought up in a separate appeal.

Plea

The Moscow City Council should find that there is new material information which was not available at the time of the Board’s decision and that it is in the public interest to develop such information and therefor remand the Conditional Use Permit application back to the Board of Adjustment for reconsideration based on more complete and correct information.

1 Board of Adjustment Minutes, April 25, 2017, Page 2
2 Slide 28. Commercial Impact, New Saint Andrews College Slides, presented at 4/25/2017 meeting.
3 Board of Adjustment Minutes, Apri125, 2017, Page 2
4 Ibid
5 Reasoned Statement of Relevant Criteria and Standards, April 25, 2017, Page 6
6 Board of Adjustment Minutes, April 25, 2017, Page 8
7 Board of Adjustment Minutes, April25, 2017, Page 3
8 Board of Adjustment Minutes, April 25, 2017, Page 8

1 Idaho Public Service Handbook. Page 50, http://bit.ly/2qXE62r
2 Ibid