At the Tuesday, July 9, 2013, Coeur d’Alene Planning Commission’s quasi-judicial hearing on the Port of Hope’s application for a Special Use Permit, Commission Chairman Brad Jordan made an interesting comment beginning at approximately 02:31:27 in the streaming video. Jordan, referring to the Port of Hope facility in Nampa, said, “Now, I understand they’re apparently operating fine in Nampa. One thing we don’t know about Nampa is what kind of an area they’re in in Nampa. It could be next to an industrial park. It could be out in some area, but we don’t know where they’re at in Nampa, so it comes back to a land use decision, I think. Is this an appropriate use for us in this location.” [emphasis mine]
Aside from the fact that Port of Hope’s location in Nampa is completely irrelevant to any decision of the appropriate use of land in Coeur d’Alene, Jordan’s reference to “an industrial park” was curious and remarkably prescient. Read on.
Readers who have not slogged through our September 18, 2013, post titled Subverting Port of Hope may wish to do so to better understand the significance of Jordan’s out-of-the-blue reference to “an industrial park.”
As we explained in Subverting Port of Hope, Coeur d’Alene attorney Dennis M. “Denny” Davis is the legal counsel representing a Washington state company competing with Port of Hope for a Federal Bureau of Prisons contract worth about $5 million to operate the Bureau of Prisons’ Residential Reentry Center in northern Idaho. Davis is also the Chairman of Coeur d’Alene’s urban renewal agency, the Lake City Development Corporation. As you can see from this link to the LCDC website, Planning Commission Chairman Brad Jordan serves on that board with Davis.
Recall Jordan’s “an industrial park” comment at the Planning Commission hearing on July 9th? Now read Davis’s July 12th email to Coeur d’Alene City Administrator Wendy Gabriel. After reading that, read the July 16th letter from Steve Woolworth, a vice president with Pioneer Human Services, Davis’s client and the competing bidder for the Bureau of Prisons RRC contract in northern Idaho. Even more significant than Mr. Woolworth’s letter, read Davis’s July 26th letter to City Planning Director Dave Yadon in which Davis requests:
… that the City of Coeur d’Alene consider three amendments to its zoning code to expand the definition of Criminal Transitional Facility to comply with current Federal law and to enable the siting of such facilities in the Light Manufacturing and Manufacturing zones. [emphasis mine]
Obligingly to the request from its urban renewal agency commission chairman Dennis M. “Denny” Davis, the City promptly scheduled a legislative hearing before the City’s Planning Commission on September 10, 2013, to consider the amendments Davis had requested. Now, pay particular attention to time stamp 09:02 in the City’s streaming video linked. At 09:02 Acting Planning Director/Deputy City Attorney Warren Wilson, delivering the staff report, explained that Coeur d’Alene’s industrial park is in the manufacturing zone, one of the zones Davis’s client would like to have available for locating a Criminal Transitional Facility.
It struck us as odd that at the July 9th Port of Hope hearing for a critical Special Use Permit, Planning Commission Chairman Jordan would make an unnecessary and apparently meaningless reference to “an industrial park“, and then poof! Just over two weeks later his fellow LCDC Commissioner Dennis M. “Denny” Davis asks the City to amend its ordinances to allow his client to possibly site a competing Criminal Transitional Facility in Coeur d’Alene’s industrial park.
It’s almost as if on July 9th, Jordan knew in advance that Davis would be back in front of the Planning Commission seeking changes to Coeur d’Alene’s zoning ordinances on behalf of his client. How prescient!
So what appears to be going on here is that since there is a contract that is open for bid (but already currently filled by Port of Hope)members associated through LCDC (but not representing LCDC of course) want to pull the rug out from a facility that has never been a problem and is in good standing with the Department of Corrections–and expedite the proposed amendments because the new competitor lacked foresight. Amend the zoning code city-wide just so the new competitor can BID on a contract–and City please drop everything, spare no expense.
Typically it takes three months to get on an agenda in front of the Planning Commission and that’s for projects far less complicated than amending the text of the zoning code. Since the Planning Commission seems content that this is a critical matter effecting public safety one would think they wouldn’t want to rush to judgement, especially since the proposed amendments wouldn’t prohibit the use in the commercial zone, but rather add more land available for the use. At minimum, a thorough analysis should be conducted as to how many parcels, neighbors, and even schools and other civic-like existing uses (parks, playgrounds, ball fields, etc.) would be affected by the amendment. But not for a client of Denny Davis? Anyone who thinks that preferential treatment is not given to certain developers and their representatives in CDA has their head in the sand, so sad.
But then developers, contractors, and the city have gotten away with arbitrary and capricious interpretation and application of the rules for decades, so what would stop them now. Hate to admit it, but I hope this one gets settled in court, and I hope the City looses big. This could be just the case to expose the planning commission for what they are–a good ole boys club (girls now allowed). I’ll repeat a comment from another post–why does the City of CDA have so many on the planning commission who are directly involved and whose only source of income is with real estate sales, development and construction? Then take into consideration those on the commission who have filed for bankruptcy and the City is only begging for conflicts of interest, conspiracy, and collusion (or at minimum the appearance of the a fore noted).
Bill you know as well as I that the Federal government does not take kindly to this type of trickery in the award of contracts and I’m guessing the authorities have already been informed of the situation. But it will be equally interesting if the City gets sued over a Decision written by a candidate for city council who consistently touts her experience on the planning commission as qualifying her to make MORE decisions. On that note, there are 48 policies in the Comprehensive Plan, Ms. Evans could only cite (1) policy that she contends (without reasoning) the proposal does not comply. What about the other (47) policies? There are numerous other and more critical procedural, substantive, and legal errors in the Commission’s decision, but for now I’m going silent to see if they can figure it out on their own. Sweet reason has failed this City, they need to be kicked and dragged into conformance.
With the added conditions of approval, the Port of Hope has sufficiently mitigated their impacts, both real and perceived. That is the crux of a Special Notice and/or Conditional Use Permit. And at the same time I would guess that Port of Hope would also like the code to be amended to include more land available for the housing of federal offenders, why not, especially since the Davis proposed amendments do not add any specifics to the locating of such facilities. With exception to the Port proposing numerous and specific conditions, this case has been poorly played by all those involved. So much for pandering for votes.
Comment by Old Dog — September 25, 2013 @ 8:47 pm
Old Dog,
Thanks for the detailed comment.
After months to prepare for the July 9th Planning Commission hearing, opponents of issuing the Special Use Permit to Port of Hope were unable to present one scintilla of evidence to justify denying the application for the Special Use Permit. No such evidence was presented. Thus, any “new evidence” that might suddenly appear at Tuesday night’s Council hearing ought to be immediately suspect.
The School District 271 representatives who testified in person or in writing on July 9th and August 13th shamed themselves and the School District. The admitted and demonstrated ignorance of the School District 271 representatives was appalling.
I hope that on Tuesday night the Council will unanimously vote to overturn the Planning Commission’s unjustified and unsupported denial of the Special Use Permit and will order that the permit be granted. Regardless of the outcome on Tuesday night, I also believe it is almost certain that the Department of Justice’s Inspector General will receive a request that it investigate to determine if and to what extent the Coeur d’Alene City government and School District 271 interfered unlawfully in the bidding process for the Bureau of Prisons RRC contract award. The BoP is part of the USDoJ, thus the DoJ’s IG conducts investigations of fraud, waste, and abuse involving BoP contract administration. Should the evidence point to further criminal conduct, the DoJ IG could either initiate federal prosecution on its own or ask the FBI to conduct additional investigations to be considered for prosecution by a US Attorney.
It would not be terribly surprising if such an investigation revealed that neither Port of Hope nor Pioneer Human Services were complicit in any such interference if it occurred. Both companies would have far more to lose than gain by being associated with any misconduct. Both companies can and should be judged by the Federal Bureau of Prisons on their ability to fulfill the BoP’s contract. Both companies benefit equally from a “clean” bidding process, but they would both be unfairly tainted with evidence that overzealous or corrupt entities in local government sought to unfairly influence the contract’s award for political or financial gain.
Comment by Bill — September 26, 2013 @ 7:21 am
Since I have been critical of the workings of the City Planning Commission lately I thought I would point out some recent examples of their work that exemplify my conclusions. At the September 10th P&Z public hearing to amend the zoning code text, that, if approved by City Council, will expand the areas in which transitional corrections facilities could be allowed. My comments follow the order in which the hearing was held.
1. Acting Chair H. Bolby didn’t know how to pronounce the word “amend”. The word is common nomenclature in the field of planning, yet she had to (what appears) confide in legal counsel. What a great start especially since the proposal was to “amend” a city-wide ordinance to which the Commission is the recommending body for all amendments to the zoning code.
2. City Legal Counsel Wilson presented the case, including several maps of areas zoned manufacturing and light manufacturing to which the proposed amendments would apply. The maps barely went beyond the boundaries of the subject zoning—what about the adjacent uses that would be impacted by the amendments? Should there be a (loosely defined and regulated) correctional facility across from Ramsey Field or the Kroc Center—no analysis, scant and only limited information was provided. With the information provided there simply was no way the Commission could make a determination of potential impacts; their blinders were on.
3. Wilson went on to make the tacit conclusion that there was very little “unused” land within the subject zones that a correctional facility could be located. But use of land obviously does not prohibit re-development if the proposed use is in conformance to the underlying zone. Gravel pits get filled, old buildings get dozed—that is the nature of development so all of the lands whether developed or not need to be reviewed from the standpoint of the proposed amendments.
4. Representing the applicant for the amendments, Denny Davis spoke more about his client’s business success and operations than he did about the proposed amendments or the impacts of his proposed amendments. Who an applicant is has nothing to do with a legislative amendment. The City will have little control of who develops these facilities. Whether they be good, bad, or ugly the code cannot discriminate but the Commission took the bait hook, line and sinker—awed in polish and shine.
5. Applicant Woolrich (Director of Adult and Juvenile Re-Entry Programs) also went on and on to tout his company’s success and the Commission again ate it up like candy. To reiterate, this was a hearing to amend the code, not a site specific, applicant specific, proposal specific hearing; the purpose of the hearing was a legislative matter where the applicant should have no bearing on the Commission’s recommendation to the Council, but it was clear Davis and Woolrich were setting the stage for a play that has not been written.
6. Woolrich continued his presentation touting his companies many successes in job training for convicts and then went on to disclose details right down to the number of aerospace parts his company manufactures with the labor of his clients—work release convicts.
7. He informed the Commission that although his Co. is a non-profit, they don’t take donations—they make bank on the backs of offenders in their “care”. He implied that his Co. is a job creator especially in the emerging aerospace industry, but left out the connection that jobs being created by his Co. are just for ex-cons. Wouldn’t surprise me if there is a loophole in the minimum wage standards for those in their care, but regardless, the Commission failed to make the connection between the proposed amendments and promoting the public health, safety, and general welfare. Instead, pie in the sky, deer in headlights is all we got.
8. Later in the hearing a point of confusion arose—the difference between the words “shall” and “may”. Where were these people in High School? And if the Commission doesn’t know the difference by now (Ms. Evans) all one has to do is look it up in the Zoning Code. The words and their usage are clearing defined in section 17.02.010. of city municipal code.
What was missing in all this?
9. There was not a single reference made to the City’s Comprehensive Plan or to the effects of the amendment if approved. To repeat—not a single reference or utterance of the words, let alone the Comprehensive Plan Map for the areas that would be affected, or the adopted Goals or Policies within the Plan. Idaho Code 67-6511 requires consideration of the Plan and an analysis of the impacts when considering amendments to zoning codes.
“Requests for an amendment to the zoning ordinance shall be submitted to the zoning or planning and zoning commission which shall evaluate the request to determine the extent and nature of the amendment requested. Particular consideration shall be given to the effects of any proposed zone change upon the delivery of services by any political subdivision providing public services, including school districts, within the planning jurisdiction.” (I.C. 67-6511 (2.a.)
“After considering the comprehensive plan and other evidence gathered through the public hearing process, the zoning or planning and zoning commission may recommend and the governing board may adopt or reject an ordinance amendment pursuant to the notice and hearing procedures provided in section 67-6509,…” (I.C. 67-6511 (2.b.)
It is painfully obvious that this Commission is more concerned with who someone is and what color it will be painted rather than following City rules as mandated by the State—or they are unaware of the rules and laws that govern their actions. The City’s Comprehensive Plan itself spells out the purpose and intent of the Plan:
“This document serves as a visionary guide and acts as a basis for future ordinances enforceable by law.” (Coeur d’Alene Comprehensive Plan, Pg. 5, emphasis added)
“Our [Comprehensive Plan] goals and objectives will be implemented by: Codes & ordinances – (Existing, revised, or new): It is a priority to keep our code up-to-date by providing rational laws that govern future development.” (Comprehensive Plan, Pg. 23, emphasis added)
Within the Decision for denial drafted by Amy Evans regarding the Port of Hope, she took care to include an (1) Objective from the Plan to which she implies the PoH violated, “Protect and preserve existing neighborhoods from incompatible land uses and developments.” But then here comes Denny Davis and a direct competitor of the Port for a $5M Federal Contract and not a single mention of the Plan, no analysis of whether or not the proposed amendments implement the Plan, not even a finding that the proposal is generally consistent with the Plan. It is irrational to find “problems” with one proposal to the point of denial, but then to recommend approval to expand the areas to where these facilities are located.
The failure to apply the current Comprehensive Plan, as required by Idaho Code, is especially disturbing since the City, and through its Lead Legal Council is again promoting and facilitating the creation of yet another Plan – Vision 2030? If the City doesn’t understand or follow its current Plan as mandated by the State, why the waste on another plan that has no statutory relevance? Shine-up your dogs and ponies for the show.
10. Lastly, please remember that the applicants in this matter want to expand the areas within the City where convicted criminals and criminals in the making will be housed. Amy Evans is on the Board of Directors for the Idaho Youth Ranch and as such has a potential vested interest in this amendment. Legally, probably pass muster, but—she is aligned and/or a competitor for Federal and State contracts related to the housing, care, and release of offenders, youth at risk, and others in similar situations. Because of her relationship with Idaho Youth Ranch and the minute participation at the hearing—she should have re-cussed herself, or at minimum declared her involvement (as required by Idaho Code) with similar facilities as being proposed by the Applicants.
From what I understand, most of the Federal felons being cared for by the Port of Hope are there because of drug related crimes, and most of those have been convicted for interstate transport of controlled substances. With the legalization of weed in Washington combined with two State borders in such close proximity to CDA you have a growth industry in the making.
Of course this too was overlooked by the Planning Commission, they want more land available for facilities and long as they’re shiny and match the socks and, they don’t care (or understand) what is required by City and State Law in the review of proposed amendments, (not almond-mints Heather). The fashion show replete with dogs and ponies known as the CDA Planning Commission has lost its shine, the time for change is now, err, November 5th would be a good start.
Comment by Old Dog — September 26, 2013 @ 11:49 am
Old Dog,
Once again, good analysis. I’d go even further and observe that Vice Chairman Commissioner Heather Bowlby should never be allowed to preside over a meeting. Good grief! She couldn’t even get through the reading and acceptance of the minutes without fouling up.
Bowlby and Wilson should have admonished the Commissioners and stopped the applicant when the applicant deviated off permissible content.
I was not thrilled with Luttropp’s suggesting that perhaps the applicant should be invited to attend a workshop to help the City write code standards for Criminal Transitional Facilities. Someone might get the impression that the fix was already in, mightn’t they?
Warren Wilson is wearing two hats now. He was recently appointed to be the Acting City Planning Director as well as continuing to hold his position as a Deputy City Attorney. While I’m not sure there is a real issue there, I did wonder in which capacity he was answering questions from the Commission. Was he giving legal counsel or was he giving planning guidance? Does his role as Deputy City Attorney inherently limit the extent to which he can answer questions as the Acting Planning Director?
Comment by Bill — September 26, 2013 @ 2:30 pm