On Saturday, January 18, 2014, the Coeur d’Alene Press skewspaper (a component of the Hagadone Corporation), ran an article headlined Tree plan draws appeal. The reader comments, particularly those by “estatetracker“, appended to the online article are extremely informative and thought-provoking.
The article reported that a local citizen intended to appeal a recommendation made by the City’s Planning and Zoning Commission at its December 10, 2013, meeting. That recommendation was to approve an amendment to its Coeur d’Alene Resort Planned Unit Development (PUD) proposed by Hagadone Hospitality (also part of the Hagadone Corporation).
The agenda for the February 4, 2014, Coeur d’Alene City Council meeting shows this agenda item:
The agenda clearly shows that this is an appeal of the PUD from the Planning Commission’s recommendation. It will be a quasi-judicial hearing with the Mayor and City Council sitting as the adjudicative body. It will be a new hearing, not an appeal from the record of the December Planning & Zoning Commission hearing. Thus, evidence may have been presented at the Planning Commission hearing in December which will not be presented Tuesday night at Council. Here is a link to the material concerning this item in the Council’s packet for Tuesday night’s meeting.
OpenCdA believes that both Councilman Amy Evans and Mayor Steve Widmyer must disqualify themselves from participating in the Tuesday hearing.
Amy Evans was elected to the Coeur d’Alene City Council on November 5, 2013, however on December 10, 2013, she was still serving as a Commissioner on the Coeur d’Alene Planning Commission. She was not installed as a councilman until January 7, 2014. As the Council’s packet shows, while serving at the December 10 Planning Commission hearing she received evidence and deliberated toward a decision, she offered the motion to accept the PUD amendment, she spoke enthusiastically in support and then voted in favor of it. While there was apparently nothing improper about her conduct or participation at that meeting, it is nevertheless a fact that she will have received evidence outside the appeal hearing scheduled for February 4, 2014. That brings into question her ability to set aside her enthusiasm for the PUD amendment and to receive and consider objectively only the evidence she would hear Tuesday night. To allow her to participate in this hearing on Tuesday night would be akin to allowing a trial court judge to also sit on the appeal court hearing an appeal from the trial over which he presided. She must disqualify herself from participating in the Tuesday night hearing.
For a somewhat different reason, Mayor Steve Widmyer must also disqualify himself from participating in the Tuesday night hearing.
As the Council’s packet notes in the staff report, the decision point is “JRB Properties LLC on behalf of Hagadone Hospitality is requesting approval of a modification of the Coeur d’Alene Resort Planned Unit Development (PUD).” The General Manager of the Coeur d’Alene Resort is William T. Reagan.
A review of Mayor Widmyer’s campaign finance reports, specifically his “48-hour Notice of Contributions/Loans Received of $1000 or More“, reflects that on October 25, 2013, he received campaign donations of $1000 each from Danelle Reagan and William T. Reagan. So William T. Reagan and Danelle Reagan contributed a total of $2000 to Widmyer’s mayoral campaign.
There are additional financial dealings between the Reagans and Mayor Widmyer. Two UCC-1 filings, both dated 12-19-2012, list Steven D. Widmyer, Marie R. Widmyer, William T. Reagan, and Danelle A. Reagan as debtors on two separate loans. Here is a link to the first UCC-1 form, and here is a link to the second UCC-1 form. The UCC-1’s don’t further identify the amounts of the loans or the properties secured.
The significance of the financial transactions between Widmyer and Reagan is that they raise a reasonable question about Widmyer’s ability to objectively preside over the appeal hearing Tuesday night. As former Virginia governor Robert F. McDonnell and his wife Maureen are learning, even if there has been no wrongdoing and the financial arrangements are just between friends, the public’s perception may be one of taint to the public official’s conduct.
To avoid raising the possibility of favoritism toward his former employer, Hagadone Hospitality, Widmyer needs to pass the gavel to the Council President to preside over Tuesday night’s hearing.
Evans and Widmyer sitting out this PUD hearing at Tuesday night’s Council meeting is not likely to change its outcome, but it will certainly go a long ways toward improving the public’s perception of the Mayor and Council.
Agreed, both should recuse themselves. Evens for the reason stated, which should be obvious, Widmeyer in the pursuit of promoting public interest. Behind all decisions made by elected officials is the presumption that the health, safety, and general welfare will be either preserved or promoted.
General welfare is synonymous with public interest and trust in our elected officials is paramount to the public interest. At the same time, State law regarding the definition of “conflict of interest” which would require a public official from being part of the decision-making process, is very narrow–there needs to be a direct financial interest; either a monetary gain or loss. I have followed the issue of “conflict of interest” from many perspectives directly related to land use issues over the last two decades, and find that most elected officials in Idaho hang their hat on the literal interpretation of the word “direct” and therefore don’t recuse themselves. Instead they hope the cost of legal action and difficulty in connecting the dots and dollars will prevent a lawsuit.
Over the years though there has also been a growing body of case law that has concluded that even the PERCEPTION of a conflict of interest can be construed as a legally defensible conflict because it erodes or will diminish public trust, therefore, not promote the public interest. With as many Planning Commissioners, City Council members, and staff that the city employs who are directly involved with land development, the many allegations of conflict, and a new growth of distrust that seems to follow each election, appointment, and hire–that the new Mayor would also recuse himself from this case.
To the appeal of the PUD amendment, more on that later.
Comment by Old Dog — February 1, 2014 @ 10:01 am
Old Dog,
As I read Idaho Code, §59-704(4), Widmyer can voluntarily recuse himself, he can declare the conflict exists and then proceed after that declaratory cleansing, or he can ask the City Attorney if he has a conflict.
My impression is that while the Idaho Legislature wants to be able to proclaim loudly and proudly that it has passed an Ethics in Government Act, many and maybe most of our legislators really don’t want any enforcement with teeth. In Widmyer’s case on the PUD amendment, almost any reasonable person looking at his close financial ties to the GM of the applicant/respondent Coeur d’Alene Resort would conclude that objectivity in presiding and voting to break a tie would be impossible. If Widmyer were summoned for jury duty in a case in which Reagan or the applicant/respondent was a party, he would almost certainly be excused after his financial ties were disclosed. If objectivity and neutrality are important, why is the standard any different for a presiding officer (with tie-breaking vote) in a city hearing than for a prospective juror in court?
One interesting aspect of I.C. §59-704 is that it permits but does not require the municipality to create “… an ethics board or commission to perform the duties and responsibilities provided for in this chapter. Any ethics board or commission so established shall have specifically stated powers and duties including the power to:
(a) Issue advisory opinions upon the request of a public official within its jurisdiction;
(b) Investigate possible unethical conduct of public officials within its jurisdiction and conduct hearings, issue findings, and make recommendations for disciplinary action to a public official’s appointing authority;
(c) Accept complaints of unethical conduct from the public and take appropriate action.”
Comment by Bill — February 1, 2014 @ 11:50 am
My big problem with Hagadone’s proposal is twofold. First, the vacation of Front Ave was couched in an amendment to his existing PUD. Second, that if approved the City will have effectively given, without compensation, a publicly beneficial right-of-way to a billionaire.
Duane’s legal and other consulting representatives testified in front of the Planning Commission that “The City” approached Hagadone Hospitality to close Front. Who is “The City”? Was it an individual with no authority, was it a City-hired consultant, also with no authority? Just how did this gift of millions of dollars worth of land come to be. Interesting to note, city staff never said “The City” approached Hagadone. I have gone through the process to vacate a public right-of-way in the City–it is not so easy as the process to this point would have you believe, nor can any individual person approve the vacation of a right-of-way. It is a separate process, with much different criteria for approval as compared to an amendment to an existing PUD.
Considering the tenure of the Chair (over 20 years on the Commission) and majority of the Planning Commission on the Commission for more than three terms, one would think they would know the difference by now. But as evidenced by the last Commission hearing (1.14.14) they were still questioning whether or not they had authority (regarding the previous months hearing on the PUD amendment), under the subject application, to remove trees that are clearly outside of the applicant’s PUD boundary.
But then if a person wants to see the epitome of an ill-trained, ill-advised city Decision-Making Board–just watch their hearing from 1.14.14. Half-way through the hearing the Commission was still questioning “what the proposal really was.” Then, after public comment on the proposal the Chair had to ask legal counsel whether or not the Applicant was allowed a rebuttal. Rebuttals (by the Applicant) to public testimony have been allowed for his entire 20-year duration, yet he still had to ask? Then, even after public testimony was closed and the Commission was in deliberations, the Commission was still confused about what the request was all about. The newest appointee (Realtor, Jeff Ward)was even questioning whether or not the application was even valid–after the close of a +2 hour hearing.
Watching CDA Planning Commission is like watching an old timer used car salesman try to sell a new hybrid. All sizzle, no steak–except what is being sold will be increasingly subject to lawsuits, discontent, and continue the arbitrary and capricious decision-making by the Planning Commission; the Commission did not even touch upon the legal criteria for amendment as was being proposed 1.14.14. They delegated their legally defined responsibilities to staff who no doubt will have to spin yarn into defensible gold.
Comment by Old Dog — February 4, 2014 @ 2:33 pm
Old Dog,
Thank you for the very insightful comments. I don’t know that any of the P&Z Commission members have any formal education as planners, but my suspicion is they don’t. Years of experience on the Planning Commission do not translate into competence.
Another person and I carefully reviewed the PUD’s files, and we found an index reference to an agreement between the Resort and the City for that portion of the small parking lot at the end of First Street, but we could not find any agreement.
I am bothered that the Deputy City Attorney is also serving as the Acting Planning Director. It seems to me that there could easily be an unintentional conflict or incompatibility of function created there. It sometimes appears to me as if what should be an arms-length business relationship between the City’s representatives and an applicant more closely resembles a hug or an embrace.
Comment by Bill — February 4, 2014 @ 3:35 pm
Old dog,
Bill and I reviewed the contents of the PUD files both original and amended. My concern was for the city owned First Street from Sherman to the water and the circular parking area which is partially constructed on First Street. As Bill noted, we found references but no formal agreement regarding the parking lot. A public records request supplied some agreements with Western Frontiers/Hagadone corp, but no written agreement. The staff report does, however, indicate City ownership of First Street.
I did address the city council on the first meeting in December of my concerns regarding the issue. I wanted to know what the public received in return for the hotel’s use of this property besides a few shrubs and walkways. I also asked about the parking area as I couldn’t imagine Hagadone letting the public use that area free of charge. I also asked about the written agreement for the use of that property.
It is my understanding that the city could not charge Hagadone for the use of the street, but they could negotiate the public’s use of the parking area.
As you pointed out, the public is losing once again.
Comment by Susie Snedaker — February 4, 2014 @ 8:37 pm
From my vantage point, what the City approved last night equates to the gift of very valuable public land for the exclusive benefit of a single private developer. It was a “public” gift but only because it was decided in a public forum–the public got the short end of the stick and that’s being polite.
Soon as the streets (Front, 2nd, and 1st)shut down to be traveled only by guests and deliveries to the Resort will the full affects of the approval be understood–but then it will be too late. Chalk another win for Duane–free City land in exchange for (?). Hmm.
Comment by Old Dog — February 5, 2014 @ 7:08 pm
Old Dog,
I couldn’t agree more with your assessment. The only thing I’d add is that the short end of the stick was pointed and thrust into the collective eye of the people who mistakenly thought the Mayor and City Council represented everyone in the City.
Now I can hardly wait to see who the new crop of sequential headnodders pick to be the next chief of police. Then shortly thereafter, we can expect the new chief’s spouse (and/or children and/or grandchildren) to be appointed and approved by Council to some well-paying but completely unnecessary city job.
Comment by Bill — February 6, 2014 @ 7:19 am
Bill,
Also be interesting to see who they appoint to the Planning Commission – With little pomp, they already appointed another realtor so it seems all they need now is a contractor and a banker and the City will have its own little development firm–but to benefit to the City, only the insiders.
Comment by Old Dog — February 6, 2014 @ 7:47 am
“to no benefit” I meant above.
Comment by Old Dog — February 6, 2014 @ 7:49 am
Old Dog,
The three appointed organizations that exert the most influence over the “Our only focus is downtown” Mayor and Council are the LCDC, the Planning Commission, and the Parking Commission. “Cronies-R-Us”. After that, the Arts Commission’s function is to spread money around in ways that aren’t too obviously influence peddling. The Parks Commission’s function is to endorse whatever the LCDC, the Planning Commission, and the Parking Commission want done in and around city parks.
The McEuen project was all about siting the new parking garage where it would most directly benefit a very few people. The park itself was the smoke-and-mirrors, the cover, for using public money for private gain in siting the parking garage. Misdirection is the magician’s trick to deceive the we’re-willing-to-pay-to-be-deceived public.
Comment by Bill — February 6, 2014 @ 7:59 am