Joe Scott and Jamie Jo Scott sued the city in district court over the Trappers Island project adjacent to Kathryn Albertson Park. The development would add 304 condos in a series of buildings between the park and the Boise River Greenbelt. Joe & Jamie Jo are the grandson and great-grandaughter of Joe Albertson, who founded large Boise-based grocer. They also sit on the board of the JA & Kathryn Albertson Family Foundation.

BoiseDev reviewed hundreds of pages of legal filings in the case, outlining the Scotts’ concerns, as well as responses from the City of Boise and the developer, Jayo Co..

[Proposal would bring riverfront condos next to Kathryn Albertson Park]

Up, or down?

The project went through Boise’s Planning & Zoning process, with the commission landing on a compromise that made neither the developer or the Scott family happy. It hinged on the height of the project. The developer, Jayo, wanted the city to grant a heigh exemption from the usual 45-foot standard – so it could build up to 81 feet.

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But the Scotts hoped to keep the project under the 45-foot level.

The P&Z commission landed on a compromise of sorts, 63 feet. Neither party liked it, and both appealed to the Boise City Council.

Ultimately, the council voted 5-1 to approve the project at 70 feet.

Scott family sues

In October, attorney Terry Copple filed suit against the City of Boise, outlining more than a dozen reasons why the court should step in and stop the project.

Sixteen factors were cited in the legal brief, including:

Approval of the height exception was granted without proper or rational justification

Prior applications for the property were not included in the record.

Procedure limiting testimony to three minutes “constitutes a violation of petitioner’s due process” rights.

The city “does not demonstrate that the required notices of hearing for the applications were sent to the proper parties in a timely manner.”

The decision constitutes spot zoning.

The project doesn’t comply with Boise’s comprehensive plan.

Copple also alleges the approval of the project was made to benefit a newly-created urban renewal district, and that it would benefit a stadium project.

Joe Scott & Jamie Jo Scott. Via JA and Kathryn Albertson Family Foundation

“It was improper and abuse of discretion as well as contrary to law for the planning & zoning commission and Boise City Council to approve the project relying upon the factor of the city benefitting from urban renewal tax revenue to be generated from the proposed new project for future city and other projects as a result of the project being located in the Shoreline urban renewal area,” Copple wrote.

In a follow-up document earlier this year, Copple said the project would benefit a stadium in the Shoreline District.

The filing came on February 12th of this year. The city and the stadium developer said more than two years ago that a stadium would not be built in the Shoreline area.

“This urban renewal district was created to fund the City’s public improvements within the Shoreline District, which includes the new proposed sports stadium that has been highly favored by the City of Boise,” Copple wrote. “Thus, new projects like (Trappers Island) provide substantial additional tax revenue for desired City projects.”

Scotts want project reset over irrigation issue

Site plan, via DG Group

The Scotts appealed the Boise City Council’s decision, on grounds that the Settlers Irrigation District had not granted permission for Trappers Island to encroach on an irrigation easement.

They also filed in court asking a judge to step in.

“Petitioners requested that the Boise City Council reconsider its decision because material evidence known to the Applicant was not disclosed at the public hearing,” Copple write. “The evidence consisted of Settlers Irrigation District’s refusal to grant permission to the Applicant to encroach upon the 30-foot irrigation easement area of the irrigation district and its refusal to grant permission to build a bridge for vehicle access to Kathryn Albertson Park.”

Copple said the city should require the Trappers Island process go back through the permitting process.

Developer disagrees

But JoAnn Butler, attorney for Jayo Corp hit back on Copple’s assertion in a response.

“(The Scotts) claim, without basis, that the Applicant cannot meet a condition of Permit approval in connection with Settlers Irrigation Company so that the Applicants somehow is now ‘required’ to give up, or relinquish its valuable conditional use Permit and file a new application with the City as though the City’s approval of the Project never happened,” Butler wrote. “Petitioners claim this Court should just agree with Petitioners’ unfounded statements and claims and suspend the Judicial Review. We emphatically disagree.”

Butler, and City of Boise Deputy Attorney James Smith said Copple’s argument wasn’t valid, because the conditional use permit issued by the city gives an applicant 24 months to satisfy all the stipulations of the agreement.

“Speculating about whether the Developer will meet this condition during the two-year term of the permit is not relevant to the judicial review and does not create good cause for delay,” Smith wrote. “Permit conditions are just that – conditions.”

“Petitioners display a profound misunderstanding or intentional obfuscation of the conditional use permit process,” Butler wrote. “Conditions of approval are rarely complete at the time of permit approval, which is exactly why such permits are known as conditional use permits. However, the Applicant does not, for even a moment, believe that Petitioners fail to understand the local government conditional use process. Rather, Petitioners are attempting to delay and thwart the Judicial Review process.”

During a hearing just after the year, Ada County district court judge Patrick Miller ruled that there was no reason for the court to step into the City of Boise appeal process.

The lawsuit continues to wind through the court. The court has not yet set a date for the next hearing, according to filings.

Correction: Updates, the developer of the project is Jayo Co., not WHPacific. WHPacific is a consultant on the project.