Is the City of Coeur d’Alene, Idaho, misusing its Planning & Zoning Commission and its zoning ordinances to drive a successful long-time Idaho-based non-profit corporation, Port of Hope, Inc. (PoH) out of business at its northern Idaho address?  If so, why?

If you own or operate a business in Coeur d’Alene or if you’re thinking of starting a business or relocating your existing business here, please take the time to read this.    What the City of Coeur d’Alene is doing to Port of Hope should not happen to you or anyone else.

If you’re a taxpayer in Coeur d’Alene, you need to read this as well.  The City government’s official actions could end up costing City taxpayers many millions of dollars.

Please read this lengthy post carefully and watch the recordings of both the July 9 and August 13, 2013, meetings of the Coeur d’Alene Planning & Zoning Commission.  Then decide for yourself if the City government is acting out of good intentions,  mere incompetence, cronyism, or something else.

What Happened?

Port of Hope was established as a drug and alcohol rehabilitation facility at its present address of 218 N. 23rd Street, Coeur d’Alene, Idaho, in 1991.  That address is in one of the City’s commercial (C-17) zones, and PoH’s use as a rehabilitative facility was and is appropriate as a matter of right in that zone, so no Special Use Permit was required.  To this day and just as it has since 1991, PoH continues to provide members of our community with those same services.

With the costs to deliver its rehabilitative services increasing, in 1998 Port of Hope sought to increase its annual revenue by becoming a federal Community Correction Center (CCC) under contract to the Federal Bureau of Prisons (BoP).  Port of Hope (PoH) had to bid competitively for the BoP contract which would run for five years.  BoP’s bid submission requirements included some mandatory notifications which PoH satisfied by providing written notification to Coeur d’Alene’s Mayor, the Chief of Police, the Kootenai County Sheriff, and two County Commissioners.  That notification included telling the local officials that if PoH won the contract, PoH would be providing rehabilitative services and transitional housing for federal prisoners nearing completion of their terms in federal prison.  To be awarded the BoP contract, PoH would have to comply with exceedingly stringent BoP security, safety, and administrative requirements intended to ensure the safety and security of Kootenai County residents, the PoH staff, and the transitioning prisoners.

Importantly, BoP required that every prospective bidder (including PoH) must fully comply with applicable local codes and ordinances, in this case those imposed by the City of Coeur d’Alene.  If PoH did not comply with applicable local codes and ordinances, it would not be allowed by BoP to bid on the BoP contract.

After receiving their formal notification from PoH in 1998, the City of Coeur d’Alene and the other officials apparently expressed no objections or concerns that were not resolved to everyone’s satisfaction, because PoH was awarded its first five-year contract to provide transitional housing for federal prisoners nearing release in Idaho.  The City did not require the PoH to apply for and be granted a Special Use Permit in 1998.

In 2003 and again in 2008, PoH sought to bid to renew its contract as the BoP’s CCC in northern Idaho.  Prior to the 2008 submission, the BoP stopped calling these facilities CCCs and began referring to them as  Residential Reentry Centers (RRC).  The transitional housing and rehabilitative functions were not substantially changed.  As part of the rebidding procedure each five years, PoH was required to send written notification letters to the Coeur d’Alene Police Chief and Mayor and two other local officials.  The notification letters with similar content were also sent to two Kootenai County Commissioners and the Kootenai County Sheriff.   Here are links to copies of the 2003 and 2008 letters sent to the City’s Mayor and the Chief(s) of Police.

2003 Letter to Mayor Sandi Bloem     2003 Letter to Police Chief Tom Cronin

2008 Letter to Mayor Sandi Bloem     2008 Letter to Police Chief Wayne Longo

Readers will note that in each letter the recipients were given the name and address of a BoP contact to whom the recipients could express their support for or concerns about this proposed CCC/RRC facility.   Thus, the recipient officials were given ample opportunity to ask questions and obtain information from the BoP to help them determine if the bidder (PoH) was already compliant with local zoning ordinances and if additional requirements (e.g., Special Use Permit) needed to be imposed by the City.  Since the BoP renewed the PoH’s contract in years 2003 and 2008, it is reasonable to conclude that Coeur d’Alene’s Mayor and two Police Chiefs and the other officials expressed no objections or concerns that were not resolved to their satisfaction.  The City did not require the PoH to apply for and be granted a Special Use Permit in 2003 or 2008.

It is also reasonable to presume that in 1998, 2003, and 2008 the City’s Mayor and two different Police Chiefs were familiar with the City’s zoning ordinances, so if those ordinances had required imposing any additional requirements on PoH, the City’s officials would have done it then.  For example, if during the initial application process in 1998 or during the 2003 or 2008 renewal processes the City had determined that PoH’s operation required a Special Use Permit to be a Criminal Transitional Facility, the City would have required PoH to apply for a Special Use Permit right then.  It is also reasonable to assume that Coeur d’Alene’s Mayor, two different Chiefs of Police, and the Kootenai County Sheriff are sufficiently aware that most of the persons in federal prisons have been convicted of felonies.

In short, the City of Coeur d’Alene had absolutely no basis for asserting in 2013 that it had not known for the past fifteen years that PoH was  providing transitional housing to federal prisoners, some convicted felons, prior to their being released from prison.   In spite of being inaccurate if not an outright lie, some variation of the City’s “We didn’t know there were felons at PoH” fiction was obediently parroted by our local skewspaper, the Coeur d’Alene Press, in its articles on July 7, July 10, August 11, and August 14.  It troubles OpenCda that the repetition of this erroneous information by the Coeur d’Alene Press may have inflamed and prejudiced its readers, including School District administrators, parents, and Planning & Zoning Commissioners, against PoH.

When PoH submitted its federal BoP-required renewal bid notification to the City of Coeur d’Alene’s Mayor, its Police Chief, two Kootenai County Commissioners, and the Kootenai County Sheriff on March 5, 2013, Deputy City Administrator John Ingalls responded with a letter dated March 26th to PoH saying PoH would be required to apply for a Special Use Permit.  Although he didn’t state it in his letter, it was the City’s position that PoH was a Criminal Transitional Facility as defined in City Code 17.03.040(F):

Criminal transitional facility:  Providing transitional living accommodations for three (3) or more residents who are on probation or parole for a felony.   The maximum number and type of offenders, based on the offenses committed, the extent of supervision required, and the length of allowable transition period shall be set by special use permit.

After receiving PoH’s completed applications, the City informed PoH that its application for a Special Use Permit would be considered in a quasi-judicial public hearing in front of the Coeur d’Alene Planning Commission on July 9, 2013.  When the hearing was scheduled, the City properly notified everyone within a prescribed radius of PoH.  That notification went to the School District as well because of PoH’s proximity to Fernan Elementary School.

OpenCdA questions if the City’s Planning & Zoning Commission hearing and Special Use Permit process, a proactive planning action, can even lawfully be applied retroactively and punitively as it appears to have been against PoH.  The requirement for a Special Use Permit is properly imposed when a project is first formally proposed to the City, not after the project has been approved by the City then completed and operating successfully and compliantly with all applicable City codes for fifteen years!  The City Code at 17.09.220 Special Use Criteria clearly states that:

A special use permit may be approved only if the proposal conforms to all of the following criteria, to the satisfaction of the commission:

A. The proposal is in conformance with the comprehensive plan.

B. The design and planning of the site is compatible with the location, setting and existing uses on adjacent properties.

C. The location, design, and size of the proposal are such that the development will be adequately served by existing streets, public facilities and services.

It is the clear intent by the wording of the City’s own ordinance that the Special Use Permit process is a land use planning process to be applied proactively at the beginning of a proposed project so that a proposal can be modified or even withdrawn to ensure proper land use in the City.   To apply the Special Use Permit hearing process retroactively to a City-approved and completed project that has been operating compliantly for fifteen years and is far beyond the “proposal” stage far more closely resembles arbitrarily imposed punishment rather than effective planning.

If the City’s highly questionable use or abuse of the Special Use Permit process results in a deprivation of property, is that not a regulatory taking?  If the City believed it could prove that PoH had deviated from what the City had approved and was now operating a facility that jeopardized the public health and safety in violation of City Code, wouldn’t pursuing an action similar to Idaho Code 50-334, Abatement of Nuisances be more appropriate and lawful?

OpenCdA also hopes the City of Coeur d’Alene understands that PoH is engaged in interstate commerce.  If the City uses its land use and zoning ordinances to unlawfully interfere with PoH’s ability to lawfully engage in interstate commerce, the City may well be sued in federal court for damaging PoH.   If the City loses, we taxpayers could be on the hook for millions of dollars.  In 2013 the value of the BoP contract is about $5 million.  Under the right circumstances, a federal court could award actual damages plus as much as three times that amount punitively.

And it could get worse.   If federal law enforcement investigated and concluded that the City’s agents had criminally interfered in interstate commerce by intentionally using the City’s land use ordinances to unlawfully deprive PoH of its eligibility to continue to bid on a federal contract, some individuals could face federal criminal prosecution (see 18 USC §1951 – the Hobbs Act).   Wouldn’t it be ironic if a former City official, employee, or volunteer ended up in federal prison and as s/he was nearing release, s/he was sent to PoH to transition back into society?

But regardless of whether its requirement that PoH had to apply to obtain a Special Use Permit retroactively was lawful, the City of Coeur d’Alene went ahead with its hearing on July 9, 2013.  The streaming video of that hearing is available here on the City’s website.  OpenCdA urges you to watch it.  It is a quasi-judicial hearing, so Planning & Zoning Commissioners are expected to be unbiased and familiar with what constitutes evidence they may properly consider in deliberating and deciding.  As you watch the hearing, listen carefully to each individual Commissioner’s questions and comments.  Then ask yourself if the Commissioners were unbiased or if their ultimate decision was affected by their biases and prejudices?  Were they influenced only by qualified evidence or did they get caught up in emotional and hysterical arguments from School District personnel and community members, arguments which had no bearing on the PoH’s suitability to be granted a Special Use Permit?

The applicant (PoH) at the Special Use Permit hearing bears the burden of proof to show the Permit should be granted, that the proposed use is an appropriate land use consistent with the City Code.   Testimony is taken under oath, and the Planning & Zoning Commissioners are required to consider only evidence (as distinguished from personal opinions or concerns or fears unsubstantiated by evidence) in arriving at a decision to grant or deny the Special Use Permit.    If the applicant has met the burden of proof and if there has been no allowable evidence overcoming that and showing the Special Use Permit should be denied, the Permit must be granted.

With that in mind, this is a statement made to the Planning and Zoning Commissioners by Deputy City Attorney Warren Wilson after public testimony at the July 9, 2013 hearing had been closed.   At the streaming video time stamp of approximately 02:22:03, Wilson states:

“Tonight — I’ll be blunt — there’s been no evidence about any issues at PoH.  There’s been evidence of fear about what happens at PoH, but there’s been no evidence.  I think we’ve heard people telling you that — you just mentioned it — they’ve flown under the radar.  There’s not been any incidents as a result of PoH.  There’s just nothing in the record dealing at that point.  It’s just not there, so I think you would have to look at how are you going to craft a finding to deny based on that fact.  You can look at it and say that we don’t think this is an appropriate use in this location, you’re also going to have to recognize that that use has been in existence since 1998, and if it was, if it’s not been a problem for — since 1998, how is it all of a sudden a problem today?  I think you have to find some way to explain that.  It can be done — I mean, that’s your job, not mine, to explain that.  So, the second word of caution I would give you is when you start looking at deny an application or speaking about socioeconomic classes, that’s really not the application in front of you.  You’re dealing with a specific application, and you’re not dealing with socioeconomic class.  That’s an area that can quickly get us into trouble.”

Note especially that toward the end of Wilson’s statement, he twice used the term “socioeconomic class”.  That phrase was not chosen randomly.  In their comments that immediately preceded Wilson’s statement, both Commission Chairman Brad Jordan and Commission Vice Chairman Heather Bowlby had used the term “socioeconomic class” in a manner which OpenCdA considered highly prejudicial against the applicant PoH.  After Wilson’s direct admonition, Bowlby and Jordan tried to backtrack on their remarks.

Wilson’s statement seems to reflect his professional opinion as the City’s legal counsel on land use issues that at the Planning & Zoning Commission’s hearing on July 9, PoH had met its burden of proof to show why the Special Use Permit should be granted and the opponents of granting that permit had failed to produce evidence sufficient to deny the Special Use Permit sought by PoH.

It appeared to OpenCdA the Commissioners seemed intent on trying to find a way to deny PoH’s permit application.  It was clear from Deputy City Attorney Wilson’s statement in the hearing that they couldn’t do it on July 9th, so they passed a motion to continue the hearing at the next regularly-scheduled Commission meeting on August 13, 2013.  The motion would allow the Commission reopen testimony and rebuttal for the very limited purposes that were explicitly enumerated in the motion.  Ostensibly, they wanted to continue the hearing for the limited purpose of getting answers to some very specific questions.  The motion to continue passed.  Immediately thereafter, Deputy City Attorney Wilson formally admonished the Commissioners that they were not to discuss the evidence among themselves or with others (see City’s streaming video at 02:57:52).

On August 13, 2013, the Coeur d’Alene Planning & Zoning Commission resumed its hearing continued from July 9th on the PoH Special Use Permit application.  Note that the August 13th hearing was chaired by Commission Vice-Chairman Bowlby and attended by Commissioners Luttropp, Haneline, and Evans.  Notably absent was Commission Chairman Jordan and Commissioner Messina.  Commissioner Soumas’ absence was not particularly noteworthy, because he was absent form the July 9th hearing and has missed more than half the Planning & Zoning Commission regularly scheduled meetings for the past twelve months.  The streaming video of the August 13, 2013, Coeur d’Alene Planning & Zoning Commission is available  at the City’s website here.

OpenCdA urges readers to watch the August 13th video carefully just as you did the July 9th video.  In any public hearing, it is expected that the public who testify may be less familiar with the distinction between evidence and opinion and emotion.  It is the responsibility of the City Planner’s representative, the City Attorney’s representative, and the Commissioners to ensure that in a quasi-judicial hearing, the Commissioners  consider only evidence but not opinion, fears, and emotions when deliberating and deciding.  At the conclusion of the hearing, in developing its Order and Findings the Commissioners are supposed to consider only evidence when deciding “if the proposal conforms to all of the following criteria to the satisfaction of the Planning Commission”:

B8A.  The proposal (is) (is not) in conformance with the comprehensive plan.

B8B.  The design and planning of the site (is) (is not) compatible with the location, setting, and existing uses on adjacent properties.

B8C.  The location, design, and size of the proposal are such that the development (will) (will not) be adequately served by existing streets, public facilities, and services.

OpenCdA watched the August 13th hearing and has a few very opinionated observations:

1.  Regular and consistent attendance should be required of all Planning & Zoning Commissioners.

2.  At the conclusion of the July 9th hearing, Deputy City Attorney Warren Wilson admonished the Commissioners to avoid any communications among themselves or with others about the matter under consideration.  He explained that all of their evidence and deliberation had to occur in an open public meeting as required by the Idaho Open Meeting Law, Idaho Code §§67-2340 through 67-2347.  When the August 13th hearing was convened by Vice-Chairman Commissioner Heather Bowlby, she should have polled each of the other Commissioners present to get an affirmative on-the-record declaration from each of them that they had  complied with Wilson’s admonition.  She, too, should have made a similar on-the-record declaration.  She did neither.  It appeared to OpenCdA that at least one of the Commissioners had been “coached” inappropriately between the July 9th and July 13th hearings.

3.  The July 9th hearing had been suspended and continued until August 13th for the very limited purposes stated in the July 9th motion to continue.  Yet when Bowlby reconvened the hearing on August 13th (see streaming video at approximately 00:15:58) pursuant to the July 9th motion, she observed, “… yet we probably do have some new faces [looking out at the audience].  Would it behoove us to go through the similar process of what we had at the first meeting [on July 9th]?”  In response, Deputy City Attorney Warren Wilson recited the items identified in the July 9th motion to continue as the items to be discussed on August 13th.  Wilson then says, “those items would be the only items that would be germane for discussion unless the Planning Commission wanted to reopen the record entirely which would take a motion and a vote to reopen and take all evidence.  Otherwise, you’re looking for input solely on those limited issues.”  After being recognized by the presiding officer (Bowlby), Commissioner Evans states, “I think we have a sizable audience here tonight and public participation, and I’d like to open it up to all evidence.”  Thereafter, a motion was offered and passed to open the supposed continued hearing up for new evidence.  The hearing on July 13th was thereby transformed into a new hearing from a continuation of the July 9th hearing .

OpenCdA believes that the motion to re-open the August 13th hearing to receive new evidence was likely a violation of the Idaho Open Meeting Law.  When the Commission passed the continuation motion on July 9th, it was setting a very specific and narrowly-defined agenda item for the August 13th meeting.  The public could reasonably conclude that only evidence related to the narrowly-defined purpose of the continuation specified in the motion would be heard on August 13th.  Based on that, those people could reasonably have decided that they would have no interest in attending and participating in the August 13th continuation of the July 9th hearing.

Yet as noted above, at the August 13th meeting the Commissioners voted to open the hearing to all evidence, not just that evidence addressing the limited purposes set by the continuation motion on July 9th.  That amounted to amending the August 13th agenda without giving sufficient notice to the public of the amendment to the agenda.  The Open Meeting Law prescribes how the agenda may be amended even after the meeting has begun (see I.C. §67-2343(4)(c)).  It reads:

(c)  An agenda may be amended after the start of a meeting upon a motion that states the reason for the amendment and states the good faith reason the agenda item was not included in the original agenda posting.

Evans’ motion was only to open the hearing to new evidence.  It did not properly state that it was a motion to amend the agenda, it did not properly state the reason for the amendment, and it did not state the required “good faith reason the agenda item was not included in the original agenda posting.”  In this instance, the “original agenda posting” was the wording of the continuation motion on July 9th.

This apparently unlawful change to the agenda is significant if PoH chooses to contest the City’s ultimate decision in court.  If a court rules that the August 13th agenda was improperly amended, then the entire proceeding must be ruled null and void.  Thus, the City’s denial of PoH’s application for a Special Use Permit would be declared null and void, and the hearing would presumably have to be reheld.

4.  At approximately 00:17:51 of the streaming video of the hearing, PoH Controller Jake Danible produced as evidence PoH’s copies of the written letters PoH had sent to the Mayor, the Chiefs of Police, two Kootenai County Commissioners, and the Kootenai County Sheriff in 2003 and 2008.  Danible had verbally alluded to them in his sworn testimony on July 9th.  These are the letters the City said it had been unable to locate before the hearings, the letters which prove indisputably the City has known since 1998 that PoH has been treating and providing transitional housing for federal felons completing their sentences before being released in northern Idaho.

5.  Testifying about how much risk the students of Fernan Elementary School are exposed to by PoH’s mere presence, School District Chief Operating Officer Wendell Wardell read some of Superintendent Matthew Handelman’s letter of August 13, 2013, into the record.  Part of the letter read by Wardell included this (see streaming video at approximately 00:38:48):  “Ultimately, not every offender will successfully complete the Port of Hope program.  We are unbelievably grateful that there has never been an incident [involving the children of Fernan Elementary], but it only takes one, and we simply cannot afford to take that risk.”

According to an August 2012 National Highway Transportation Safety Administration publication, an average of six children die every year in school transportation vehicle traffic crashes. According to a report published by the American Journal for Sports Medicine, “High school and college football have approximately 12 fatalities annually with indirect systemic causes being twice as common as direct blunt trauma”

After listening to Wardell recite Superintendent Handelman’s hysterical blather (explicitly stated in Handelman’s August 13th letter), OpenCdA wonders why the Coeur d’Alene School District 271 has not stopped using school transportation vehicles and stopped playing football.   After all, Superintendent Handelman obviously believes,”…it only takes one [student injury or death], and we simply cannot afford to take that risk.”

Handelman’s “it only takes one” comment was not evidence; it was unsubstantiated and highly inflammatory opinion.   It was such an egregious comment that OpenCdA believes Deputy City Attorney Warren Wilson and City Planner Sean Holm should both have instructed the Commissioners to completely disregard it.  They didn’t.

6.  If there was going to be any incontrovertible testimony that would prove PoH actually posed any meaningful risk or threat to the health and safety of the School and surrounding community, it would have come from Coeur d’Alene Police Chief Wayne Longo’s sworn testimony (see streaming video at approximately 00:44:11).  It didn’t.  Longo cited no specific incidents — none — involving persons in transition housing at PoH who had posed a risk or threat to the School or community.  Listen to the Police Chief’s complete testimony.  The focus of his testimony concerned what factors would affect his patrol officers’ response time to an incident at or near Fernan Elementary School.   This clear lack of damaging testimony by Coeur d’Alene Police Chief Wayne Longo is evidence supporting PoH’s own earlier testimony explaining how its safety and security measures actually enhance rather than endanger the community’s safety.

7.  After hearing Police Chief Longo’s testimony, the Commissioners allowed School District 271 Chief Operating Officer Wendell Wardell to return to give more testimony (see streaming video at approximately 00:48:12).  Perhaps the Commissioners were hoping and praying that he would give them some shred of evidence which would justify denying PoH the Special Use Permit.  He didn’t.

Wardell testified that when he had asked earlier about response times to a problem at Fernan Elementary School, he was asking how long it would take PoH to respond, not how long it would take the Police to respond.  (PoH had already explained its notification and response procedures.)  OpenCdA is astonished by Wardell’s and the School District’s rationalization.  It implies that if a member of the student body, faculty, or staff at Fernan Elementary perceived a threat by someone they believed to be from PoH, the School would call PoH before calling the police.  OpenCdA wonders how the School would specifically distinguish between a felon from PoH and one of the felons on probation or parole from the Idaho Department of Correction?   Do they have a red “PoH” tattooed on their forehead?  If someone at  the School is threatened, shouldn’t the School immediately call 9-1-1 rather than trying to decide if the threat is posed by someone from PoH or someone else?  Memo to Fernan Elementary School Principal Bill Rutherford and District School Superintendent Matthew Handelman:  If someone at your school is threatened, call the cops!

Wardell concluded by saying the School District and the Coeur d’Alene Police Department have “an awesome relationship.”  If the working relationship is so “awesome,”OpenCdA wonders why the School District and Fernan Elementary School Principal Bill Rutherford supposedly did not know until this year that federal felons are temporarily living in transitional housing at Poh?  If the working relationship is so “awesome,” wouldn’t the Police Department’s School Resource Officer Program have told schools and particularly Fernan Elementary School about PoH?  It appears to OpenCdA that either the working relationship is not as “awesome” as Wardell represented or, more likely given the lack of specific incidents in Chief Longo’s testimony, the Coeur d’Alene Police Department does not consider PoH to actually pose the level of threat that School District 271’s Administration would like the Planning & Zoning Commission and the public to believe.

8.  It is OpenCdA’s opinion that Deputy City Attorney Warren Wilson made very prejudicial statements in response to a question by Commissioner Haneline (see streaming video at approximately 02:08:32).  Wilson improperly referred to an action that would be presented to the Planning & Zoning Commission at its September 10, 2013,  meeting.  Wilson said:

“There is — you can’t sit here tonight and craft new criteria.  You’re stuck with the criteria you’ve got.  Going forward after tonight, frankly you’ll be seeing a proposal next month that will make some amendments to the code that we’re dealing with tonight.  So, you’re going to have a chance in the very near future to look at where does it make sense to have these [criminal transitional] facilities.  But that’s a discussion for a future night.”

Haneline persisted and asked (see streaming video at approximately 02:16:05):

“Warren, is anything at the next session you’re alluding to, can we delay — and I know the delay impacts their [PoH’s] RFP response, but maybe they [PoH] could ask for an extension…”

Wilson then responded:

“The proposal such as it is is to open up additional areas where this may be an allowable use.  Right now, we limit these by special use permit to the commercial zones.  So this would open up — potentially open up — the manufacturing zones as a place to locate these types of facilities.  That’s the proposal.  And again, that’s really not germane tonight.  Frankly, it would be inappropriate to consider a potential  change in the code when evaluating this proposal that’s before you tonight.  You have to base it solely on the code we have based on the evidence that you’ve received tonight.  And the previous hearing.”

As Wilson said, it would have been and was inappropriate for the Commission to consider the potential change in the City Code when deciding on the PoH issue in front of it.  So why did Wilson even bring it up?   As for his feeble admonition to the Commissioners that it would be “inappropriate to consider a potential change in the code when evaluating this proposal that’s before you tonight”:  How does one unring a bell?

9.  As if to reassure the Coeur d’Alene Planning & Zoning Commissioners that they will not likely be held accountable for their decision, Commissioner Evans has “one more question for Warren” (see streaming video at approximately 02:17:26):  “Is there an appeal process for the applicant [PoH] if this was denied tonight?  Do they [PoH] have any other…”

Wilson interrupts and says, “Certainly.  They can appeal this decision to the City Council, and then the Council’s decision would be the final decision of the City.”

Commissioner Evans represents on her Facebook Page that she has been on the Planning & Zoning Commission for six years, yet she does not know that either the applicant or the City may ask the Coeur d’Alene City Council to conduct a new hearing (appeal) from a decision of the Planning & Zoning Commission?

10.  Throughout both the July 9th and August 13th hearings,  various Commissioners (those who could be bothered to attend) lamented at the complexity of the issue facing them.  At the conclusion of the August 13th hearing, it was necessary for the Commissioners to vote to approve or disapprove PoH’s application for a Special Use Permit.  Customarily, one member of the Commission declares the findings of the Commission and offers a motion to accept or reject the application.

On complex issues like this one, it is appropriate for the Commissioners to vote on acceptance or rejection but let the City Attorney’s Office write the findings and order.  In spite of subtle suggestions from both Vice Chairman Commissioner Bowlby and Deputy City Attorney Wilson that should be the course followed, Commissioner Amy Evans emphatically insisted that she would author and recite the Findings and Order and offer the motion right then.

According to her Facebook page, Commissioner Evans has been on the Planning & Zoning Commission for six years.  Yet as far as OpenCdA has been able to determine, she has not written any findings or order on any of even the most routine actions to come before the Commission during her time on the Commission.  Evans seems to acknowledge this when she says (see streaming video at 02:18:52):  “I’ll need some assistance.  This will be a new territory for me, so I’m willing to attempt it.”

At the conclusion of her Findings and Order, Evans’ motion to deny PoH’s application for a special use permit was adopted 3-0 by Commissioners Evans, Haneline, and Luttropp.

11.  Having watched both the July 9th and August 13th PoH hearings before the Coeur d’Alene Planning & Zoning Commission, OpenCdA observes that the applicant PoH in sworn testimony answered all the Commissioners’ questions fully and directly and often volunteered clarifying information to try and educate the obviously unprepared City Planning Department staff and the Commissioners.  PoH’s testimonial evidence was not refuted by any relevant and material evidence presented by opponents.   Most notably, neither the Coeur d’Alene Chief of Police nor the School District 271 Chief Operating Officer could produce even one documented example of the PoH’s presence and function in any way posing a threat to the community or Fernan Elementary School.

Opponents to granting the Special Use Permit offered concerns as well as expressions of opinion and fear, but none of the opponents presented evidence which would support the Commission’s decision to deny the PoH application for the Special Use Permit.  Nevertheless, PoH proposed and agreed to accept some additional conditions which should have helped reassure the community and the School.  It didn’t matter.  The Coeur d’Alene Planning & Zoning Commission had made up its mind that PoH’s application for a Special Use Permit had to be denied.  Facts and evidence be damned.

Why Now?

The “how” of what the City appears to be doing to PoH was described in the first part of this post.  It is particularly important for readers to remember that the BoP has determined that it needs and will have only one RRC in northern Idaho and one in southern Idaho.  PoH is the current northern Idaho RRC.  The BoP requires only that the northern Idaho RRC must be somewhere in Kootenai County but not necessarily in Coeur d’Alene.  So if one of the would-be bidders is declared to be ineligible to bid because the prospective bidder has failed to comply with a BoP requirement such as full compliance with City ordinances, that would certainly give an advantage to the other bidder, wouldn’t it?

OpenCdA does not care which company is awarded the BoP’s contract.  The contract should be awarded by the BoP based entirely on BoP’s compliance with federal procurement regulations and its diligent determination of which company can better fulfill the contract.  It’s really that simple.  OpenCdA is not an expert in the administration of community corrections facilities — but neither are Coeur d’Alene’s Planning & Zoning Commissioners and neither are the City’s Mayor and City Councilmen.   It is the responsibility of the BoP, not us, to objectively determine who the winner will be.   Yet from the circumstances surrounding the bizarre zoning action the City has taken against PoH, it appears that declaring who will win and lose the BoP contract is exactly what the City of Coeur d’Alene, Idaho, is trying to do.

Earlier in this post OpenCdA asked the fairly obvious question:  “Why now?  After allowing PoH to operate as a criminal transitional facility for 18 years without a Special Use Permit, why did the City of Coeur d’Alene suddenly decide it needed one in 2013?”

The answer is pretty straightforward:    In 2013 the Federal BoP’s RRC contract in northern Idaho is worth about $5 million.  In 1998, 2003, and 2008 there were no bidders competing with PoH, but this year there is.  The  competing bidder, Pioneer Human Services, Inc. from Seattle, Washington, is represented by a local attorney who is not only very close to the City of Coeur d’Alene’s elected and appointed officials, he’s one of them.

In its effort to win the BoP contract away from PoH, Pioneer is represented by local attorney Dennis M. “Denny” Davis.  Davis is employed by the law firm of Witherspoon-Kelley in its Coeur d’Alene office.  Davis was appointed to the Board of Directors of Coeur d’Alene’s urban renewal agency, the Lake City Development Corporation (LCDC), by Coeur d’Alene’s Mayor and City Council.  Davis is currently the Chairman of the LCDC, and he sits on the LCDC Board with Coeur d’Alene City Councilman Deanna Goodlander and Coeur d’Alene Planning & Zoning Commissioner Brad Jordan.  Jordan is currently the Chairman of the Planning & Zoning Commission.

It is noted that another attorney among the six in Witherspoon Kelley’s Coeur d’Alene office, Joel P. Hazel, is married to Coeur d’Alene School District Trustee Christa Hazel, one of School District Superintendent Matthew Handelman’s bosses.  We mention that only in passing because District 271’s Fernan Elementary School Principal Bill Rutherford, Superintendent Matthew Handelman, and Chief Operating Officer Wendell Wardell voiced such illogical and hysterical opposition to the Special Use Permit being granted to PoH.

To understand the “why,” and more specifically the “why now,” it will help to understand a timeline of events.

1991 – PoH authorized by City to provide detoxification in a social model/non-medical environment.

1998 – PoH notifies various local officials in writing that it intends to bid on BoP contract.  BoP awards five-year contract to PoH.

2003 – PoH notifies various local officials in writing that it intends to bid to renew BoP contract.  BoP again awards five-year contract to PoH.

2008 – PoH notifies various local officials in writing that it intends to bid to renew BoP contract.  BoP again awards five-year contract to PoH.

March 5, 2013 – PoH notifies various local officials in writing that it intends to bid to renew BoP contract.

March 22, 2013 – Pioneer submits application for Special Use Permit to City of Dalton Gardens, Idaho, to allow Pioneer to establish an RRC in Dalton Gardens.

March 26, 2013 – CdA Deputy City Administrator Ingalls’ letter to PoH informing PoH that PoH would be required to seek and obtain a Special Use Permit from the City of Coeur d’Alene.

April 23, 2013 – City of Dalton Gardens denies Pioneer’s request for Special Use Permit.  If this denial stands after appeal to the Dalton Gardens City Council in June, Pioneer will have to find another location in Kootenai County if it wants to win the BoP contract to win the BoP contract away from PoH.

June 6 or 19, 2013 – Dalton Gardens City Council hears Pioneer’s appeal from its Planning Commission’s denial of its SUP application.  Pioneer is represented in the hearings by Dennis M. “Denny” Davis.

July 7, 2013 – Coeur d’Alene Press reports forthcoming July 9 PoH hearing before City’s Planning & Zoning Commission.  Press article prejudicially and deceptively states, “Only recently did the city learn that Port of Hope, the sober living housing complex at 23rd Street and Coeur d’Alene Avenue, was also treating offenders for felony crimes other than drugs and alcohol.”

July 9, 2013 – Coeur d’Alene Planning & Zoning Commission begins hearing on PoH application for SUP.  Hearing was continued for limited purposes until August 13, 2013.

July 12, 2013 – Email from Dennis M. Davis to City Administrator Wendy Gabriel asking for approximate amount of time City would need to amend the City’s zoning code.

July 16, 2013 – Email from Wendy Gabriel to Dennis M. Davis, Shanna Stuhlmiller, and Sean Holm directing Stuhlmiller and Holm to respond to Davis’s email of July 12, 2013 and copy her [Gabriel] with their reply.

July 16, 2013 – Pioneer executive letter to Coeur d’Alene City Planning Director Dave Yadon asking for zoning interpretation regarding adding a Criminal Transitional Facility to either or both of the City’s Manufacturing or Light Manufacturing zones.

July 26, 2013 – Davis letter to Yadon asking for amendments to City zoning code and asking that hearing be scheduled at August 2013 Planning & Zoning Commission meeting.

August 13, 2013 – CdA Planning and Zoning Commission continues PoH SUP hearing from July 9, 2013.  At conclusion of hearing, Commission votes to deny PoH application for Special Use Permit.

August 20, 2013 – OpenCdA submits public record request to City of Coeur d’Alene for the written response to Davis’s email as directed by City Administrator Wendy Gabriel on July 16, 2013 (see above).

August 20, 2013 – City Clerk responds to OpenCdA public records request (see August 20, 2013, above).  City Clerk Renata McLeod responds via email, “Regarding your [Idaho Public Record Law] request below, a verbal response to the email was provided to Ms. Gabriel and Mr. Davis so there is no physical record to provide.”

September 10, 2013 – Pioneer counsel Dennis M. Davis provides client’s request for various amendments to City’s zoning ordinances pertaining to Criminal Transitional Facilities.  See streaming video of meeting here.  Motion to amend ordinance as requested by Pioneer counsel Dennis M. Davis passed and will be forwarded to City Council for hearing.

October 1, 2013 – PoH de novo hearing for Special Use Permit (appeal from Planning & Zoning Commission decision) on agenda to be heard by Coeur d’Alene City Council at its regularly scheduled meeting.

October 15, 2013 – Pioneer’s request for Criminal Transitional Facilities ordinance amendments on agenda to be heard by Coeur d’Alene City Council at its regularly scheduled meeting.

What this timeline suggests is that from 1998 until early 2013, the City of Coeur d’Alene knew that Port of Hope was operating compliantly and successfully as a Criminal Transitional Facility, but the City simply didn’t care.  It wasn’t until a competitor for the BoP contract, Pioneer Human Services, appeared on the scene in early 2013 that the City of Coeur d’Alene decided it needed to enforce an ordinance it had apparently ignored for almost fifteen years.

 Conclusion

As stated earlier, OpenCdA does not care who is awarded the RRC contract for north Idaho.   That should be determined by the BoP in strict compliance with all applicable federal regulations and laws.   The highly questionable if not unlawful actions of the Coeur d’Alene Planning & Zoning Commission, Coeur d’Alene City Staff, the Coeur d’Alene Mayor and City Council and perhaps others in the City must not be allowed to unfairly disqualify either or both bidders for the contract.  They are engaging in interstate commerce.

OpenCdA does care that it appears City and possibly other officials acting under the color of law may have put the City and therefore its taxpayers in a position of financial jeopardy.   It also appears to OpenCdA that the City’s Planning & Zoning Commission arrived at a decision harmful and detrimental to Port of Hope through a quasi-judicial process in which the Commission not only heard but considered hearsay, emotions, concerns, and fears while at the same time failing to give due consideration to evidence supplied by the applicant Port of Hope and not refuted by the City or others.  In short, it appears to OpenCdA that officials in the City of Coeur d’Alene improperly applied a planning function to arrive at a punitive decision detrimental to Port of Hope, a decision which may unlawfully impede Port of Hope’s ability to lawfully continue to engage in interstate commerce.

OpenCdA hopes that at the hearing on October 1, the Coeur d’Alene City Council considers only evidence and arrives at a decision completely consistent with the evidence presented to it.