City Government

Boise Joins Growthophobe Movement, GUARDIAN Offers “Back Story”

In a brilliant act to cut development in the Foothills, Team Dave has apparently seen the light and joined the GUARDIAN GROWTHOPHOBE movement.

Boise City Council Tuesday made public the purchase of Hammer Flat – a 701-acre wintering range for mule deer, elk and antelope in east Boise – using funds generated by the 2001 foothills serial levy. The Mayor and Council approved the $4.1 million expenditure at a special council meeting Tuesday at City Hall and we applaud the purchase.

The back story is more fun.  Exact details may never be known, but this is what the rumor mill suggests–based on historical facts:

Seven agencies, Ada County, Boise County, Idaho Dept of Fish and Game, the Idaho Land Board, Boise City, BLM, and the Forest Service, over about 30 years, pieced together the Foothills Policy Plan in 1997.  The Foothills Levy, the funding mechanism was passed in 2001.  The plan specifically targeted the Hammer Flat area as critical for acquisition to protect wildlife habitat.  As late as 2004, Fish and Game tried to purchase Hammer Flat for about $2 million, and was out gunned when the Hammer Flat developer offered about five times that amount.

All of the involved agencies codified the plan, with the exception of Ada County.  They approved two Foothills developments.

Avimor was the first, with the initial developer selling out about 5 months ago to another developer for about 20 cents on the dollar. The Cliffs was the second planned community Ada County approved in the foothills, and the second PC to fail.

The Cliffs was a more complicated affair.  Having never acquired approval from ITD for an entry road, their entitlement was never completed, and, as of today, they had less than two years remaining on their approval permit, with the economy in the tank.   The developer began to tire of multi million dollar interest payments on a project that was looking worse by the day.

In December the developer quit paying their property taxes and are rumored to have quit making interest payments to their lender. Whether this was done for tactical reasons, or because their funds were running short is unknown.  Rumors suggest that, also in late December, the developer was marketing the project to anyone who would listen.  At least one potential developer contacted ITD about the entry road, and did not like what they heard.

At about the same time, the primary investor in The Cliffs was facing their own fiscal crisis.   Rumors suggest the primary investor was attempting to unload the note associated with The Cliffs independent of the developer. The investor won the race by making contact with Boise City (The Foothills Levy is one of the few solid sources of money at this time.)

Having lost out once before, the city/fish and game, were taking no chances this time.  Negotiations were very tightly controlled with as few as two people, not including the mayor or council, privy to anything but the most general information, until the deal was in the bag.

The deal was sealed Tuesday in council chambers by unanimous vote.  The battle for Hammer Flat is over.  The GROWTHOPHOBE fight over development of the foothills continues.  Look for Cartwright Ranch, Dry Creek and other PCs in the western foothills to be next on the failure list.

Comments & Discussion

Comments are closed for this post.

  1. untamedshrew
    Mar 10, 2010, 8:49 am

    Excellent resolution. Thanks for this post Guardian.

  2. Where will all the people come from to build on already platted lots in this valley? There is an unbelievable inventory of lots for sale. The next big issue is where do they think they will get the potable water to supply the average of 160 gallons per day per person if they do show up and decide to build something.

    We live in a desert environment and water will ultimately dictate growth in this valley long before other factors come into play.

  3. It’s not clear, but I guess you’re in favor of limiting growth? The GROWTHOPHOBE brand is a bit topsy-turvey if that’s the case.

    Points for the ironic twist, but I’m not seeing how it helps your cause.

    Anyway, seems like a good outcome, except for our not getting it for half the cost. I imagine the developer would be happy to roll back time and let the city have it for $2M, given the chance.

    EDITOR NOTE– In general we oppose growth for the sake of growth. If people or businesses wish to locate here, pay their fair share of taxes and impact fees and play by the established rules, we welcome them with open arms. GROWTHOPHOBES don’t like to PAY businesses or people to come here to increase the population to justify things like a train or “create jobs.” We have been burned by the likes of Micron, Albertson, and a host of others who seek cheap labor, power, and taxes.

  4. Dean Gunderson
    Mar 10, 2010, 3:41 pm

    Others might be surprised to hear me say this, but I think this is an excellent outcome. Now, all the public has to do is buy up the remaining privately held properties on Hammer Flat.

    But, point of correction. The Avimor parcel is not in the Foothills Plan adopted by Boise City. The plan drew its own 35th Parallel about a mile south of where the Avimor site was proposed.

    Also, Ada County and Boise City jointly agreed to back off on claims that the other party was reneging on key aspects of the Foothills Plan. Ada County had claimed the City wasn’t fairly participating in a regional transportation plan for the Foothills, that critical stakeholders (even within Boise itself) were not involved in the process, and that the City had failed to identify a set of zoning ordinances that would implement the plan once it was adopted — and Boise City asserted that the County was obligated to adopt whatever plan came out of the planning process by fiat.

    A joint Resolution where the City and the County agreed to pursue certain actions in lieu of original demands was signed by both Mayor Coles and the Board of Commissioners (w/ Vern Bisterfeldt as a signatory), the resolution required both parties to take certain actions within six months. For its part, Boise City was granted an immediate revocation of all Rural-Urban Transition zoned land within its Area of City Impact, the land was downzoned to Rural Preservation or Rural Residential. Boise is still the only city in the County with such a buffer. Unfortunately, the County had to wait several years for Boise to complete its obligation — a set of zoning ordinances that would implement the Foothill Plan in its own annexed areas.

    I remember quite clearly, City Councilman Shealy being pointedly critical of the County’s (apparent) refusal to adopt the Foothills Plan. Though this was likely a feat of political theater, it was also possibly due to Mr. Shealy not having been told that the City had officially changed its position regarding the need for the County to adopt the plan, before he even entered office.

  5. John @ Boise
    Mar 10, 2010, 6:07 pm

    Good news to be sure on the Hammer Flats acquistion, but is there more to the story? Avimor (also owned by the Johnson family) has wanted to hook up to Boise City sewer for years, but Boise has resisted in opposition to the development. Will Avimor now be allowed to hook up, enabling further development along north 55? I’d put my money on some quid pro quo. Johnson/Avimor has done the math, figured out how much their own sewer treatment plant will cost to entitle, build and operate- and found a better deal.

    Of course, all of this is speculation- maybe the family will just book the $5 million loss against the previous three years of income- i think they are allowed to do this under federal law passed last year.

    EDITOR NOTE–We will allow this post, but we think you either have the family or development wrong…Unless Johnsons recently acquired Avimor from SunCor. Also, the sewer membrane plant is in place, but Boise refused to take sludge–needed until about 40 homes are on the system.

  6. Steve Edgar
    Mar 10, 2010, 8:14 pm

    I am very happy to see this outcome. There were a host of problems identified when these projects were originally approved (I sat on Ada County P&Z at the time and was against the Cliffs, Avimor and M3) . All these projects, in my opinion, had far too many “conditions of approval” and many of those were unenforceable by Ada County. Many problems were associated with traffic, water and fire protection. — Now if we can get the water assessment studies correctly researched on the M3 project. The City of Eagle (now in turmoil) is a main host to that project and IDWR, I believe, is being taken to court because M3 hydrologists disagree with IDWR’s recent build out restriction due to water…. Water, health (sewer) and (fire) safety are huge issues that are routinely given brief attention in the rush to develop outlying planned communities. We must strengthen the codes for development in these areas. The economy will eventually return to a more robust state and when it does we will be in the business of “controlling” growth — unless we codify our desires now. So it really is up to us to demand change in code from the City and County governments who, in the past, only saw tax revenue dollar signs in these projects. For the official record, I am NOT against growth – just random projects to capture a profit that do not meet their own vision (Hidden Springs). I know we will grow but I want to preserve quality of life as well; so far we have not done that very well; this is a great start.

  7. Mr. Gunderson is correct, I am surprised to hear him say this is the best outcome for Hammer Flat. As a key member of Ada County’s crack PC sales team, his testimony consistently, stridently, encouraged the opposite.

    However, Mr. Gunderson still has a chance to set the record straight.

    While the City was celebrating on Tuesday, and Mr. Johnson was talking glowingly of his latest legacy for his family, The Cliffs was still very much alive before Ada County. Tonight he asked the county to table, for another month, his request for a time extension to develop the cliffs. The request was granted by Tilman and Yzaguirre.

    The next hearing will be before the Ada County Board of Commissioners next month. You can not make this stuff up.

    Tony Jones

  8. Blazing Saddle
    Mar 11, 2010, 8:04 am

    Hee Hee Hee. I just read ol Gunderson’s statement about, “the County’s (apparent) refusal to adopt the Foothills Plan”.

    My pappy used to do this thing, when he saw someone pulling taffy, he would go out, get some road apples, and spray em with gold paint. Sometimes he would even asprinkle em with gold glitter. Real purdy they were. He’s then send em to the lucky party.

    Come here Trigger, back up to the bucket. Dean deserves a present.

  9. Dean Gunderson
    Mar 11, 2010, 4:22 pm

    I do have a question for those who think the County stood to financially gain from Planned Communities.

    Since the County collects taxes on any parcel within the county, whether it’s in a city’s limits or outside. What would the tax collection motivation be for the County — exactly?

    For a developer like Skyline, who has holdings both in and out of cities, proposing a development in an unincorporated area was simply a business decision that the County had no part of — and if they had instead chose to develop the same number of parcels inside a city’s limits, the future tax collected by the County would be exactly the same.

    Simply put, there wouldn’t be any difference — there is no tax revenue benefit motivating the County to process Planned Communities. There are certainly headaches, and PDS staffing implications — but Planned Community applications weren’t charged a flat rate, they were simply billed for every hour a planner spent processing the application (no costs were passed on to tax payers). And, as occurred, when the development economy tanked most of these staff were laid off — there wasn’t a need for them, and no tax payer should expect to pay salaries and benefits to keep unnecessary staff on the payroll.

    I suspect that Mr. Jones couldn’t really be that surprised about my statement — the record of public testimony (and the staff report) speaks for itself. The Cliffs development proposal offered the transferal of privately held property used by climbers in the Valley to the public, and actually had a well-funded plan to restore & protect 350 acres of damaged habitat that would be managed by a respected nature conservation group. Without The Cliffs project, and with Boise City’s inability to act on its own Foothills Plan to acquire Hammer Flats, the Hammer Flat plateau could legally develop (without public hearings, and without conditions of approval) as a residential only subdivision. No habitat preservation, no restoration, and no transferal of climbing areas into public hands.

    Unlike Mr. Jones, I served the public and my activities & testimony were structured around the rule of law. And, I never offered any of my professional services to a Planned Community developer — let alone actually enter into a professional contract for services, as Mr. Jones had.

    If the County elected officials (or appointed P&Z Commissioners), and by extension the PDS staff, were somehow in cahoots with Planned Community developers — why did M3 choose to pursue its development approval through the City of Eagle? Quite frankly, the M3 developers had approached the County about its potential project (as had another, subsequently Eagle-annexed, developer) — but when we made it clear what they would be required to do in their development, and that we would not allow the costs to review their application bleed over into the department’s general fund they shopped their project around and found a willing buyer at Eagle City Hall. The City of Eagle, unlike the County, would stand to gain a tremendous amount in tax revenue if it could annex the M3 land.

    When a Planned Community developer, who had been contemplating developing land north of Eagle, wanted to establish a private water district that would have been subject to the PUC’s water quantity & quality controls — the City of Eagle showed up at the PUC hearing to oppose the establishment of the district. Eagle stated that it had plans to establish its own municipal water district, which (by the way) wouldn’t be subject to PUC controls.

    Even though the economic collapse has drastically effected my personal life (as it has many people in the Treasure Valley), perhaps my own personal road apple reward — all I can say is, Thank God the housing bubble popped!

    It has allowed 701 acres of Hammer Flat (minus Mr. Jones’ property) to be purchased by the public, and it put the kibosh on M3. Even though there aren’t any funds to actually restore any of the habitat at Hammer Flat, nature will eventually work its magic.

  10. Mr. Gunderson, is right, I did offer my services to a PC developer. In that instance I ultimately mediated a deal between them and their neighbors to reduce the density and grant other concessions. It is still the only PC in county history to receive supporting testimony from the adjoining neighborhood association. I am proud of that.

    Contrast that to Mr. Gunderson’s “adherence” to the rule of law. On November 18, 2006, after the first hearing but before the second hearing, Gunderson was one of several staffers who received an email that originated with the developer that said, “Perhaps some good clarification from Staff or Legal regarding the ‘incomplete app[lication]’ issue Jones and his followers seem to think they have us nailed on would be appropriate prior to testimony at the 12/6 meeting?” (Note: Staff followed the developer’s advice and modified and/or added testimony accordingly.)

    Receiving exparte communication requires a believer in the rule of law, to recuse himself. There is no record Gunderson even complained.

    We could also talk about how staff turned the developer into their agent by, suggesting the developer, “Look at way to incorporate illegal sub on east edge of proposed development.” (Pre-application meeting with staff.) The developer followed the suggestion with a variety of failed attempts to force several people, including me, off our land. Not exactly due process as I have come to understand it.

    The list goes on, and on, and on.

    But, this is not really about Gunderson, or me. Oh, I’m pissed at the county all right. But, in that I have to take a number behind Meridian, Eagle, Boise, Kuna, etc. The bigger issue is that the confrontational, PC anywhere, damn the opposition atmosphere still persists at Ada County, and it is still damaging to everyone, citizens and developers alike.

    The example of the Hammer Flat saga produced an epilog on par with something from Shakespeare. The Developer lost about $5 million and is possibly finished forever. Ada County lost one commissioner and 5 staff members, not counting several who left in disgust. The two commissioners who remain are tainted for violating the open meeting law. The prevailing party, note that I did not say victor,, lost about $30 k.

    Sadly, it didn’t have to be this way. If the county would have simply codified the Foothills Plan, and enforced it, this could have all been avoided and the wildlife would have still been protected. SaveThePlateau has long been on record as being okay with the clustered 300 homes on Hammer Flat that the Plan would have allowed.

    Sorry for taking so long to get to the point, but it is this. Every single systemic governmental failure that led to the Hammer Flat train wreck still exists. Land use law at Ada County is little more than anarchy. Ada County still does not have a viable, enforceable comprehensive plan. The PC Anywhere provisions in County Code continue to run counter to the State’s Land Use Planning Act.

    This failure on the part of Ada County means that some day, somewhere, another developer will propose something that irritates someone, perhaps a retired Microsoft Millionaire with the funding to really do some damage, and the battle will be joined. No one can predict where or when this will happen, or take steps to avoid it, because there is no law!

    Dear Ada County Commissioners, you can protect your citizens, and at the same time protect the developers, by implementing a meaningful comprehensive plan, and enforcing it fairly and consistently. Please, do it soon.

    Tony Jones

  11. Changing with the wind
    Mar 12, 2010, 9:53 am

    A lot of people trying to get on the right side of history. Maybe Gunderson and Richert can share a beer.

  12. Anyone (Gunderson/Jones) with that much to say on this topic must surely be either lying….or trying to make themselves feel better about something they did wrong.

    Avimor is not and never was owned by the Johnson family, nor has it changed hands yet, nor did it ever desire to hook into Boise sewer….they built their own state of the art $6M biomembrane reactor faciity.

    It is true that Avimor’s parent company SunCor Development is up for sale but has not yet changed hands. In fact, the pursuing party appears to have run into issues (most likely funding and it now appears very likely that the company (SunCor) will fall into BK.

    All local employees of Avimor except one (somebody has to stay behind and turn off the lights) were laid off today.

  13. Dean Gunderson
    Mar 12, 2010, 5:01 pm

    If someone could point out to me where Idaho’s Land Use Planning Act says (or even implies) that urban development MUST occur inside a pre-existing urban area, or where the LLUPA states that floating zones (in essence, what the PC Zone operates as) is prohibited, I’d be happy to consent to Tony Jones’ assertion that Planned Communities shouldn’t occur outside a city’s Area of City Impact.

    A PC in Ada County is intended to operate as a starter city. In fact, once a PC acquires more than a small number of qualified electors as residents — they can begin the process of incorporation (even if it is over the developer’s objections). A PC’s development and regulating plans are all that are needed to qualify as a new city’s Comprehensive Plan and Zoning Ordinance. And a PC’s financial plan is more operational than most of those found in the existing cities in Ada County. Some of the proposed PC developers even planned to push for incorporation as soon as possible. I suspect just to get out from under the required biennial County development review all PC’s are required to undergo. No other development type in the region is subject to as much scrutiny, or have as many conditions of development placed upon its fiscal solvency.

    The purpose of regional planning is to encourage reasonable and fiscally sound development that contains the cost of tax & fee supported public services. The PC Ordinance is only one tool that does so, by tying the permissible development of internal phases of the PC to fiscal benchmarks. The PC Ordinance, and the number of private developers who appeared interested in submitting such an application, had a curious (and not altogether unpredicted) effect within the existing cities in Ada County. They began to seriously look at ways to better serve the taxpayers within their respective boundaries. It also kept them at the table as the region tried to forge a new future through the Communities In Motion (Long Range Regional Transportation Plan) and the Blueprint for Good Growth.

    Without the pressure of the “Barbarians at the Gate”, it would have been extremely unlikely that the six cities, ITD, VRT, and the Ada County Highway District would have gotten as far as they did through the process. And, there would have been significantly fewer people showing up at the various public planning meetings.

    Since all the hubbub regarding PC’s started around 2004, the only one still building is the only one that existed before 2004 — Hidden Springs. And, even Hidden Springs wouldn’t have been approved under the revised PC Ordinance used to approve The Cliffs. And, not a dime of existing taxpayer money was spent reviewing the applications. Unlike all the over-built subdivisions developed within the cities during the bubble, the PC’s impacts were contained to the developer alone — and if they failed to build on the approved schedule they surrender their provisional land entitlements. Unfortunately, this can’t be said of all the excess Sprawl parcels approved by the cities in Ada & Canyon Counties during the same timeframe. We will all be paying for those approvals for years to come.

    As far as I am concerned, I was happy to play my small part as the “aggressor” since I knew that the supposed threat of the PC’s (which could become their own cities, with their own Areas of City Impact) would keep the existing cities in the region at the table to forge the Communities In Motion Plan — and provide support to ACHD to help it develop its Livable Streets Design Guide.

    These two achievements cannot be separated from the PC discussion. In fact, few of the meetings for either the CIM or BGG happened without the obligatory railing against Ada County and its contemptable stance on PC’s.

    My only regrets are that we couldn’t keep the pressure up long enough to force meaningful concessions on regional Agricultural & Open Space protection, or achieve some kind of sensical ITD stance on getting developers to pay for their impacts on the State highway system, or get Canyon County to the Blueprint negotiation table.

  14. Dean, ask and ye shall receive,

    Idaho Code, 67-6502.

    PURPOSE. The purpose of this act shall be to . . .

    (f) To encourage urban and urban-type development within incorporated cities.

  15. Dean Gunderson
    Mar 13, 2010, 2:36 pm

    Sorry Code Man,

    The question was, where does the code say (or even imply) that urban development MUST occur inside a pre-existing urban area.

    No question that most urban development “should” be “encouraged” to go inside existing incorporated areas. But LLUPA doesn’t say that it “shall”, or “must”.

    Look at these sections for further clarification; 67-6503 states that County’s “shall” excercise all the powers conferred by LLUPA — which places them on a par with any city as an urbanising authority, and 67-6508 clearly states that even county Comprehensive Plans shall include urbanised components within its jurisdiction — clearly, county’s jurisdictions don’t extend into existing incorporated areas.

    Ask youself how cities form, and which (sole) constitutional authority is obligated to shepard the formulation of those new cities — counties, and counties alone.

    When counties adopt rules that streamline this process, they must be rigourous and contain the cost of any tax supported public service. Ada County’s PC Ordinance is the best example of this type of local rule in the State of Idaho. And, it’s 100% compliant with LLUPA.

  16. Amen to the last comment. Too many people get hung up on words like encourage, should, discourage and many other feel-good words. The law cares about shall, must, and other absolutes. Idaho is all about the feel-good words since that is enough to placate the average citizen and maximizes private property rights.

  17. Interesting discussion that dates back to similar BG discussion, Feb. 1, 2007 “Inside Ada County Spin Machine,” in which an AC spokesman prefaced an e-mail on this subject with this:

    “I thought you all might find the letter below from Tony Jones entertaining.

    Can’t remember the outcome of the judicial review on this???

    Either Mr. Gunderson or Mr. Jones still involved in PCs in Ada County or elsewhere?

    Avimor is a partnership of SunCor and the McLeod family (Spring Valley Ranch), not the Johnson family (Skyline Corp.)

  18. The faltering economy obscured a major, potentially fatal flaw with The Cliffs. It didn’t have, and never gained, the right to use state land for its entry road.

    It took John Franden, ACHD Commissioner, about 30 seconds to both see the problem and broadly sketch the restrictions associated with disposing federally funded, eminent domain acquired state land to private entities.

    If the problem was clear to Franden, it is difficult to understand how the developer’s team of planners and attorneys, together with the county’s planning staff, especially a transportation planner with a demonstrated penchant for the law, could have missed the problem.

    At the other end of the continuum, conspiracy theorists point to the possibility of a back room deal whereby ITD would ignore the various rules and regulations, simply hand over the dirt to the developer, and the public would either not care, or never be the wiser.

    Perhaps Dean can shine some light on the situation?

  19. Citing the letter of the law, as opposed to the intent, is a legitimate defense to avoid conviction. However, using it as an excuse to set policy contrary to the intent of the law, when the intent is quite clear, is deplorable.

  20. Dean Gunderson
    Mar 14, 2010, 7:16 pm

    I’m not involved in any Ada County PC developments.

    At the time of my departure from Ada County (laid off two years ago), The Cliffs’ first subdivision of land (Adelaide) had a condition of approval placed upon it that required the developer to first acquire adequate access to the subdivision, before the plat could be duly recorded. This type of condition of approval is not uncommon, similar ones regarding sewerage, water, electricity, and telecommunication provisions are standard fare on subdivision rulings. If the developer fails to meet these conditions of approval, then the plat cannot be fully recorded. I believe Commissioner Franden correctly noted that Skyline was stuck between Ada County’s access condition, and ITD’s inability to act on the proper disposition of potentially excess ITD Right-of-Way. The onus rested with the developer to secure some type of resolution with ITD, not upon either Ada County (as the condition noted) or upon ACHD (as Commissioner Franden noted). Again, back to protecting the resources of tax supported services.

    Code Man may be correct in regard to the “intent” of LLUPA — but it isn’t up to either he, or myself, to inject our own interpretations on the intent of legislators when they passed the law. Legislative intent matters most to courts when they rule on such cases. These court decisions, and the actual letter of the law are what public planners must rely on when crafting policy for elected officials to act upon. The worst kind of repressive public policy is one where a public official (elected, appointed, or employed) chooses to inject their own interpretation on the letter of the law — guided only by their interpretation of “intent”. Thankfully, we have a judiciary to provide a check and balance on such misguided attempts to sway public policy.

    If ALL urban development were mandated to occur within existing incorporated cities — if one were to believe Code Man’s assertion that this is what legislators’ intent was when LLUPA was adopted — then two conflicting conditions would have to be simultaneously entertained. 1) All urban development in Idaho after LLUPA was enacted (in 1975) was/is legally required to occur within the incorporated limits of cities (as they existed in 1975), and 2) That all municipal Comprehensive Plans could not plan on urbanizing areas within their unincorporated Areas of City Impact — since this would openly conflict with the “intent” to accommodate ALL growth within existing incorporated cities. Growthaphobia ad absurdum.

    Such a reading would also remove the legal right of citizens to vote to incorporate themselves as a new city — and undermine all of Title 50 of the State Code, from which municipalities gain their right to self-governance. This is why the Ada County PC Ordinance has never run the risk of being reversed in Court and why no city has ever launched a serious case against Ada County on the matter (outside the court of public opinion). The PC Ordinance is not only legal, it is the predictable outcome of LLUPA and a complete reading of Idaho Statutes.

  21. Dean, thanks for solving my riddle. Indirectly as always.

    Hint, Commissioner Franden could not have said what you attribute to him because, on June 28, 2006 when he commented on the access road problem, Ada County’s condition of approval was still 6 months in the future.

  22. Dean Gunderson
    Mar 15, 2010, 10:29 am

    John Franden is a smart man, and a good friend to Ada County residents (whether they reside in or out of a city).

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