A gas station developer whose Main Street project was rejected by the city of Ketchum in 2016 and 2017 has filed a long-promised lawsuit against the city.
On June 5, Roy Bracken filed the suit in Blaine County 5th District Court against the city of Ketchum, City Administrator Suzanne Frick, former Mayor Nina Jonas and former Planning Director Micah Austin.
Bracken’s lawsuit alleges that the defendants acted illegally and punitively during the permitting process for his gas station project. He hoped to purchase and develop the North Town Center property on the west side of Main Street, just north of downtown Ketchum.
Jonas left office in January 2018 and Austin resigned as planning director shortly after because he was hired as the city administrator in Ammon, near Idaho Falls.
Bracken’s project sparked months of intense debate during a series of hearings before the Planning and Zoning Commission throughout 2016 and into 2017. The commission voted to reject a permit for the gas station in December 2016.
Bracken wanted to revive the project by revising his site plan. He attempted to resubmit a new application in April 2017 and again in June 2017. He succeeded in petitioning the P&Z for a new permitting process on the revised plan.
However, before that process could move forward, the City Council approved an ordinance banning gas stations from Main Street. The ordinance took effect in July 2017 and precluded the second application from continuing.
Bracken’s lawsuit asserts that the ordinance was “illegal spot zoning” and seeks to overturn it. He also seeks damages for the money he spent during the failed permitting process, which he calculates to be at least $206,000. The complaint also seeks damages for lost profits and income, which will “be proven at trial, but well in excess” of $299,000 per year, according to the complaint.
Bracken has two attorneys representing him in the case—Sam Linnet and former District Judge Robert Elgee. Bracken’s attorney during the permitting process, Ned Williamson, was appointed as Elgee’s replacement when Elgee retired in 2017. Williamson has recused himself from presiding over Bracken’s lawsuit in 5th District Court.
In the complaint, Bracken alleges that the actions of Austin, Jonas and Frick amounted to political favoritism. Neighboring property owners to the proposed site, including Barbi Reed and Gary Lipton, vociferously opposed the project during the permitting process.
“The alleged conduct of individual defendants Micah Austin, Suzanne Frick and Nina Jonas rises to the level of deliberate indifference or conscious disregard of law and fact in order to reach a pre-ordained result,” the complaint states. “These acts were also done to benefit particular identifiable citizens of Ketchum and/or as political favors.”
In response, city spokeswoman Lisa Enourato wrote in an email that the city denies the allegations contained in Bracken’s lawsuit. Attorneys for the city have not yet filed an answer in court.
“The city intends to vigorously defend this lawsuit and denies the allegations within,” Enourato wrote. “An answer to the complaint will be timely filed. The city has no further comment at this time due to pending litigation.”
The complaint asserts that the city’s process for Bracken’s permit application shifted following an online public opinion survey showing opposition to the project. The complaint asserts that the results of the survey were illegally introduced into the planning commissioners’ process.
Before a P&Z hearing in July 2016, Jonas included the survey in her email newsletter, which featured six questions about the project and was distributed to constituents. It fielded 435 responses and the results were presented to the commissioners and the public on July 11.
Serving as Bracken’s lawyer at that time, Williamson objected to the survey results’ introduction. He said anonymous survey results were appropriate for a legislative hearing like a City Council meeting but were wholly inappropriate for a quasi-judicial P&Z hearing. He said it may have been unprecedented in Idaho.
“After this poll and this meeting, the staff reports changed dramatically, and staff argued that traffic standards were not met,” the complaint states.
Bracken was required to produce traffic studies at his proposed site on Main Street, at the intersection of Fifth and Main, and from the Chevron station in Hailey over a holiday weekend.
Bracken and his engineer did analysis that found that the staff’s concerns over traffic “could only possibly occur once in a multitude of years.”
“The city ignored unrebutted evidence concerning the lack of a traffic flow problem in order to find a minute possibility thereof, all in order to deny Bracken’s application,” the complaint asserts.
Bracken and architect Steve Cook revised the site plan to improve the traffic flow and submitted a new application in April 2017. Austin refused to accept that, determining that it was not a substantial enough change to warrant a new permitting process.
The P&Z overruled him at a meeting on June 8. Bracken tried to resubmit the new application on June 19.
“On June 27, 2017, Micah Austin drove to Bracken’s attorney’s office in Hailey, Idaho, and physically returned Bracken’s June 19 application … to Bracken’s attorney, over the attorney’s objection,” the complaint states. “This was not a discretionary act. The planning administrator of the city of Ketchum is duty bound to accept a properly tendered application, which he improperly and illegally refused to do.
“In a rush to attempt to make Bracken’s application illegal, the city proposed and passed a new ‘spot zoning’ ordinance on July 3, 2017, prohibiting gas stations on Main Street in Ketchum.”