7-29-21

While the Murgoitio Park land-swap is off, the fiasco is far from over. The deal is not off owing to the prudent financial judgment of the Mayor, or in light of updated valuation data—it’s off because the swap would not have met the legal requirement of equivalent valuation in the first place. The appraisals on these parcels never added up, and it’s beyond belief that City officials were unaware of the gross imbalance from the start. (Friends of Murgoitio Park (FOMP) has been decrying this glaring flaw from the start.) No—there’s something else at work, here. The abrupt termination of the land-swap deal did not seem to stifle the City’s hasty, sprawl-forward fixation on Murgoitio Park one bit.

For over a year, developers and City officials strategized in anticipation of community push-back. Developer Doug Fowler has been in communication with Parks and Recreation and Boise Airport officials as far back as February of 2020, toying with the idea of seizing this land for development. In 2020, Parks and Recreation Director Doug Holloway was notified that by airport staff that “using the property as residential was specifically prohibited,” and he conceded “this would require a heavy and intense public process and could get shot down,” but he concluded “Getting the additional Foothills property would be awesome,” justifying pursuit of a “long shot” proposal.

Everyone involved knew it would be a battle. They organized their first volley to land in June of this year—in the dead of summer, when nearby neighborhoods would be distracted with summer activities—and they organized it to strike hard, to frenetically haul the process through its paces, skipping steps, so that by August, no one in the vicinity would quite know what had happened. Perhaps the most important aspect of the strategy was to get the deal done before November, when district elections will conceivably rebalance the seats of control, making if far more difficult to bulldoze historic decisions with irreversible, unstudied maneuvers.

Now the valuation imbalance has caused the swap to hit a legal wall, and it has been called off. Still the City is pushing as hard as ever. After taking a single day to shrug off the error, the Mayor and City Council work intensely to annex and rezone this protected space—and they do it with reckless abandon, seemingly blind to potential errors and legal
insufficiency.

The City’s first stumble was its failure to conduct a timely “pre-application meeting” for this project. A pre-application meeting is held among the various city departments involved in a project and precedes neighborhood meetings to ensure that presenters are prepared to answer citizen questions. Since the City skipped the Murgoitio Park pre-application meeting, Parks Superintendent Jennifer Tomlinson was grossly unprepared to address the number and variety of questions she encountered at the somewhat farcical Murgoitio “annexation” neighborhood meeting. She repeatedly stated that she could not speak to what happened in the 1990s—though this was when the parkland was purchased, restricted, and designated for a park. Before any kind of development is considered on Murgoitio Park, the city would need to hold a proper pre-application meeting, and then conduct a meaningful community meeting.

The entire Treasure Valley should note the imminent and catastrophic flaw in the City’s high-density development proposal for Murgoitio Park—that it is inconsistent with FAA rules. The Murgoitio property was purchased in 1992 with FAA funds, or with other equally restrictive federal airport funds. As a result, the Airport and the City imposed land-use restrictions against any future residential, commercial, or industrial development on the Murgoitio site. Per FAA regulation, the Boise Airport Master Plan defines the long-term use of the park, and the park is still defined, as of December 2019, as airport influence area “A.”  In other words, Murgoitio Park was and is designated as a regional park to comply with long-term FAA requirements.

After an FOMP press conference on July 26, the City claimed the Murgoitio Site was purchased with enterprise funds from the airport, rather than FAA funds. Even if this claim were true—and we have documentation suggesting FAA funding was sought and accepted in 1993—the City is splitting hairs. Airport and FAA funds are subject to restrictions regarding “Diversion of Airport Revenue” which was a common problem across the nation in the early 1990’s when airports were audited by the inspector general and caught with their hands in the cookie jar.

If the City received any federal funding requiring assurances and imposing restrictions, then it is bound by FAA rules governing the release of such assurances and restrictions. The City sought and/or received FAA funding annually since the early 1990s, and records suggest it may have received such funds after plans were made to build Murgoitio Park. The City’s failure to follow these rules and abide by restrictions in place could result in consequences as dire and impractical as the forced relocation of the Boise Airport. Former Mayor Brent Coles and Former City Attorney Susan Mimura—both of whom served in the era when the Murgoitio site was restricted and designated as park- land—agree that these FAA funding issues create an insurmountable obstacle to developing Murgoitio Park for residential use.

In June of 2021, FOMP requested public records from the City relating to the airport and FAA funding; in July, FOMP submitted letters to the City regarding the FAA issues. FOMP has not been allowed access to the documents requested in June. At a July 20, 2021 City Council work session meeting—the same date the City was previously scheduled to lift the restrictions on the park—Jennifer Tomlinson announced that the City retained an outside law firm with FAA specialization, and she vaguely described the need to comply with the airport agreement, “address the covenants,” and “calculate how to
reimburse the airport.”

Hell-bent on re-zoning Murgoitio Park by August, it seems the City had, as late as July, not yet consulted with counsel as to whether the action was legal under FAA rules. City officials had apparently conferred at length with a developer to concoct this irreversible housing scheme on FAA-restricted public land without bothering to check with the FAA. The FAA still has not weighed in on the issue, nor have the Idaho Air National Guard.

Finally, at this stage, the City of Boise has retained an outside law firm of specialists—a clear stride away from the norm, as the City generally relies on the Office of the City Attorney to advise in land-use matters. And they’ve hired a firm with FAA expertise—notably while public records requests remain unfulfilled.

The City promised to make the records requested by Friends of Murgoitio Park available by July 9, but has failed to deliver. Following a July 26 FOMP press conference, the City claimed a “computer glitch” prevented compliance with the records request. If this were true, why did the City not respond to several follow-up emails regarding the lack of response—and even a letter from our FOMP attorney regarding the outstanding requests? The excuse is a transparent falsehood. We can’t help but wonder whether the City is using its specialized counsel to deny public records requests relating to airport federal funding. If that’s the case, we must protest: The City should not use taxpayer dollars to pay exorbitant fees for specialized legal counsel with the intent of stonewalling the public.

The legality of re-zoning Murgoitio Park is dubious, at best. No part of the process should be conducted in haste, nor should any part be conducted in secret. Until the City has produced all records related to airport funding and the FAA has signed off on this proposed project, its proponents have zero credibility. This is a shameless and tragically flawed project, one which could have immense adverse consequences for the entire Treasure Valley, and it is being muscled through the process at dangerous speed—conveniently just ahead of the November election.

By David King, President of Friends of Murgoitio Park