Proposed ICCU Plaza survives another P&Z challenge

The City of Boise Planning and Zoning (P&Z) Commission shot down an appeal at its Sept. 13 meeting made by an organization called Better Change for East Downtown (BCED). The appeal contested a conditional approval by the Design Review Committee (DRC) for the proposed double tower building at 200 N. Fourth St. in Boise, arguing that the DRC failed to follow the city’s own downtown design guidelines. The appellant claimed that the usual design review process itself used for large projects was flawed.

DRC’s May 12 decision incorporated its usual mechanism of granting conditional approval for the project design with further details to be worked out in a public work session. Such work sessions are common for large projects in Boise and are conducted so that the developers and the public can all provide input into the design process before DRC grants final approval. The appellant argued that this process of conditional approval and follow-up public work session is fundamentally flawed. The developers argued that the appeal of a conditional, not final, design approval was “frivolous” and “ capricious.”

This project was denied a conditional use permit and rezone by P&Z late in 2020. The developers appealed the denials to the city council, which granted the appeal with a tie-breaker vote by Mayor Lauren McLean.

The current design appeal

For the last year and a half, BCED has spearheaded resident opposition to the proposed double-tower mixed use building at 200 N. Fourth St. in Boise. The building is a joint project of Idaho Central Credit Union, Ball Ventures Ahlquist of Meridian and the Brighton Corporation of Meridian. The development partnership is represented by Geoffrey Wardle of the law firm Clark Wardle LLP of Boise.

The latest permutation in the saga of actions taken to prevent or modify the building project was an appeal by BCED to the Boise P&Z of the conditional approval by the DRC, which was made on May 12. Boise’s planning division recommended that DRC grant conditional approval and provided a list of recommended conditions that the developers should meet to gain final approval. Prominent among those conditions was a public work session with DRC, where the developers and public could discuss specific undecided details of the design.

Such work sessions are commonly used by the City of Boise for the design approval process. As Planning Division Design Review Supervisor Josh Wilson stated at the public hearing for the appeal: “Public works sessions are a mechanism that the DRC uses on a frequent basis. When an application is largely ready for approval, there are details to be finalized…It’s much like a public hearing. The (notification) signs go up on the site, the mailings go out, newspaper notifications are published. And it is held at a Design Review Committee hearing with input from the public…to resolve details of construction on these types of buildings.”

Appellants are given 10 days after a DRC meeting to appeal the commission’s decisions. BCED filed its appeal on May 21. At the public hearing for the appeal, BCED spokesperson Dan Everhart told P&Z that: “We aren’t asking you, nor did we ask the Design Review Committee, to reverse the closed zoning decision made by the Boise City Council. Instead, we ask that you require the design review process to proceed forward in a way that is equitable and fair to both the neighbors and the public at large.”

The appeal application filed with the city on May 21 made three claims:

• The decision to approve the design application without several details was arbitrary.
• Approval of one type of screening on one garage elevation, but not all, was arbitrary.
• Approving two layers of garage screening for some neighbors and one layer for others is inequitable.

Garage screening

The appeal’s arguments regarding the garage screening were deemed by the city’s planning staff to lack substance. By their vote to deny the appeal, P&Z implicitly agreed with that assessment.

The May 12 DRC decision approved of the vegetative green screening on the north façade of the building’s parking garage. It left other screening details to be worked out at the work session. The appeal argued that this was incomplete and arbitrary and that one uniform screening design should be used throughout. The appeal further argued that allowing two-layer screening design for just one façade while the other two facades had just one layer was inequitable for those neighbors looking at the single layer screening.

When asked by members of the P&Z Commission as to the specifics of the design requirements for garage screening, Wilson explained that: “The design criteria for garage screening are not prescriptive…structured parking facilities shall be designed to meet applicable building provisions in chapter four (of the downtown design guidelines), including architectural character, massing and articulation, building elements and details, building materials, building lighting and blank wall treatments, essentially, leaving the door open for design interpretations.”

Flawed process?

The most striking claim in the appeal was that the conditional approval with follow-up public work session was a flawed process. Everhart argued that an approval by DRC without all of the details was in contravention of the downtown design guidelines: “At the most basic level, we believe that the committee failed to properly implement the guidelines by approving the applicant’s design without the necessary details needed to make an informed decision.”

Everhart went on to claim that the work session format did not provide adequate opportunity for public input into the design approval process: “At the work session, how will the public object to what is decided by design review? We may weigh in, but will this allow us to impact the outcome of the process? May we appeal decisions made at the work session? What about those elements not discussed? This is a major flaw in the system. If allowed to continue unchecked, Boise citizens stand to lose their ability to participate in any meaningful way. The fact that most projects exclude the public from legitimate participation through the procedural fig leaf of the work session is not something of which to be proud.”

Wilson stated that: “The public, advertised work session will give the public and the applicant a chance to present those materials and any concerns and will provide for no violation of due process. The project will not receive final approval until that public work session takes place. And therefore the planning team finds that the committee did not issue full approval without alternative information.”

Developer spokesperson Wardle stated: “We’ll be back hopefully in six weeks in front of the design review committee, identifying the changes that we made to implement the direction that they gave us. This is the process. Nothing that has been articulated tonight merits this appeal. And in fact, this appeal is frivolous as it comes in light of the fact that we still have to go back for a work session.”

Wardle noted that decisions made in the work session were still open to appeal, so the rights of citizens in the process were not at all denied: “We would be back in front of you with a (further) appeal (by members of the public) from that work session…this is the process that has been followed; and it would be arbitrary and capricious to adopt and accept the arguments you’ve heard tonight from the appellant.”