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CC - Applicant Response to Proposed Conditions of ApprovalI t 0 JUSTIN T. CRANNEY ADMITTED TO PRACTICE LAW IN IDAHO EMAIL: JCRANNEY@HAWLEYTROXELL.COM DIRECT DIAL: 208.388.4837 DIRECT FAX: 208.954.5934 November 6, 2018 VIA E-MAIL Meridian City Council 33 E. Broadway Ave. Suite 102 Meridian, Idaho 83642 ATTORNEYS AND COUNSELORS Hawley Troxell Ennis & Hawley LLP 877 Main Street, Suite 1000 P.O. Box 1617 Boise, Idaho 83701-1617 208.344.6000 www.hawleytroxell.com Re: Timber Creek Recycling, LLC —Proposed Conditions of Approval (H-2018-0042) Dear Mayor de Weerd and City Council Members: This memorandum is filed to address the proposed conditions ("Conditions") submitted by City of Meridian staff to the approved Application for Amendment to Development Agreement (H-2018-0042) which was filed by Timber Creek Recycling, LLC ("Timber Creek"). The Conditions were filed on October 12, 2018 and at the hearing on October 16, 2018, the Council elected to consider the Conditions on November 7, 2018. Timber Creek has reviewed each of the proposed Conditions and met with City of Meridian staff to discuss each. Based on Timber Creek's review and meeting with the City of Meridian staff, Timber Creek responds to each condition as follows: 1. Ten Year Limitation. Condition #1 proposes to impose a hard deadline on all Recycling Activities (as this term is defined in the approved Amended Development Agreement ("Amended DA")) of ten (10) years. Timber Creek opposes Condition #1 because the Council extensively discussed a hard deadline at the hearing on September 18, 2018 and ultimately rejected this concept in lieu of Section 6.8 of the Amended DA. As a hard deadline was rejected by the Council in the initial approval of the Amended DA, a hard deadline should not be added to the Amended DA as a condition to the approval. 2. Section 5.2.2 — Screening. It appears that the purpose of Section 5.2.2 of the Amended DA was misconstrued. Section 5.2.2 contemplates that Recycling Materials may be screened (the separation of materials into categories such as size, material, etc.) as part of the 55663.0002.11474218.1 November 6, 2018 Page 2 Recycling Activities; not that the Recycling Materials will be visually screened from adjoining roads or properties. As such, Timber Creek is opposed to inserting the proposed language into Section 5.2.2. Timber Creek will address the proposed conditions relating to visual screening in Paragraph 6 below (relating to Section 6.3.2 of the Amended DA). 3. Section 5.2.4 - Nuisance. The Meridian City Code ("MCC") 4-1-10(A)(2) provides that compost piles may be maintained on property in the City of Meridian so long as the piles do not create a nuisance condition. Timber Creek questions why Condition #3 is proposed since conditions to approval are obligations which are: a) typically more restrictive than standard requirements under the applicable authority; or b) are in addition to standard or uniformly applicable authority. See MCC 11 -5B -6(D) and 11 -5B -8(B)(3&4) (approved conditions are in addition to general requirements of Title 11). Since Condition #3 does not impose more restrictive requirements than is required under the MCC, Timber Creek objects to its inclusion in the Amended DA. If Condition #3 is included solely for informative purposes only and City Council prefers it be added, Timber Creels requests the Condition be revised as follows: Compost piles shall be maintained in accordance with Meridian City Code 4-1-10(A)(2); provided, however, that should a violation of Meridian City Code 4-1-10(A)(2) occur, the sole and exclusive remedies under this Agreement for any such violation shall be abatement by civil action or code enforcement. 4. Section 5.2.5 — Nuisance. MCC 4-2-1 is the City of Meridian's nuisance ordinance. As with MCC 4-1-10(A)(2) (above), Condition #4 is a general obligation on all property within the City of Meridian and, therefore, Timber Creek objects to its inclusion in the Amended DA. If it is for informative purposes only and City Council prefers it be added, Timber Creek requests Condition #4 be revised as follows: The Property shall be maintained in an orderly manner to keep it from becoming a public nuisance, as defined in Meridian City Code 4-2-1; provided, however, that Timber Creek shall not be required to store the Recycling Materials within a structure and that should a violation of Meridian City Code 4-2-1 occur, the sole and exclusive remedies under this Agreement for any such violation shall be abatement by civil action or code enforcement. 5. Section 5.3.3 — Jurisdiction. Timber Creek is generally open to Condition #5 with minor revisions to keep the City of Meridian from being required to interpret and/or enforce the laws, rules, ordinances and regulation of the governmental agencies identified therein (redline against the Section 5.3.3 in the Amended DA): Timber Creek may take any action to: 55663.0002.1147421& 1 November 6, 2018 Page 3 (a) Comply with conditions ss eci imposed on it by all federal, state and local governmental agencies with jurisdiction over the Recycling Materials or the Recycling Activities, including but not limited to, the Department of Environmental Quality, the Department of Agriculture,.--&r—the Central District Health Department, the U.S. Environmental Agency, the U.S. Department of Agriculture, the Ada County Air Quality Board, and the Idaho Department of Water Resource- --relating - to the Ree riater4 is or- the Reey ling keti itie,. (b) Comply with the rules and regulations relating to the Recycling Materials or the Recycling Activities which may be adopted, revised or re -interpreted by any of the aforementioned governmental agencies, as the rules and regulations are enforced by said agenciesthe—Depcai4ment of Enviren+nefAal QuaRR==+i-`y,-- h@ Department —6-f—Abl'iEulWre---6T—the —Central —vracrrvt ri@arcri and (c) Cure or correct deficiencies or issues identified by any of the aforementioned entities with jurisdiction over the Recycling Materials or Recycling Activities+he'-'epart e„+ of r'nyif^nme ntu Quality, the DepaAment of AgrieuktiFe or the Central Distric Health Depai4 meet. In no event will Timber Creek's compliance with this Section 5.3.3 constitute development or redevelopment under Section 3.4 of this Agreement. 6. Section 6.3.2 - Landscaping. Landscaping conditions were spread between Condition #2 and Condition #6. Each condition is addressed as follows: a. "Property shall be screened sufficient to block the view of the processing facility, including all materials stored on the site from S. Locust Grove Rd and W. Columbia Rd. prior to commenced of the proposed expanded use." Timber Creek reads this condition to require that all landscaping shall be installed and trees and plants of sufficient maturity so that the Recycling Property is fully blocked from view. Timber Creek opposes this language as having the trees and plants reach sufficient maturity to fully block the Recycling Property could take years or decades. Staff clarified at the meeting with Timber Creek that full growth was not expected but that the trees and plants would be planted and berms constructed prior to engaging in Tier 2 composting. Timber Creek is open 5 5 663.0002.1147421.8.1 November 6, 2018 Page 4 to this clarified conditions provided that pilot programs for obtaining Tier 2 designation, as required by DEQ, are exempt from this condition. b. "Mix of evergreen and deciduous trees, shrubs, lawn or other vegetative ground cover." Timber Creek is opposed to being required to mix the types of trees and landscaping provided for the screening. Timber Creek has specifically selected trees that will provide the greatest coverage in the shortest period of time. By requiring a mix of trees and landscaping, the intended purpose for the trees and landscaping (screening the Recycling Property and Recycling Activities) will not be obtained as quickly. Further, given the relatively short time the Recycling Activities will occur in relation to the life/growth of some trees, the trees would likely be torn down by a developer prior to the trees reaching maturity or providing the desired screening. C. Timber Creek proposes the following conditions to Section 6.3.2: Timber Creek will install trees and other landscaping features, or construct a sufficient berm, or a mix of the two, on the portions of the Property depicted on the Site Plan, to mitigate the sound generated on the Recycling Property by the Recycling Activities. Said landscaping and/or berm shall be installed prior to the commencement of Tier 2 composting provided that pilot programs for obtaining Tier 2 designation, as required by DEQ, may occur prior to installation of the landscaping or berms shown on the Site Plan. Timber Creek shall provide notice to the City when the landscaping and/or berms set forth on the Site Plan have been installed. 7. Section 6.5 — Dust Abatement. Condition # 7 is derived from MCC 11 -3C -5-B-1 which only requires dustless materials for "off street parking areas and driveways into and through a parking area..." Timber Creek is opposed to Condition # 7 as MCC 11 -3C -5-B-1 is generally inapplicable to the Recycling Property and complying with Condition # 7, as proposed, would generate more dust than it abates. Nevertheless, Timber Creek is willing to add the following to the language currently in Section 6.5 of the Amended DA: 6.5.6 Dustless Material. Surface the entrance to the Recycling Property and the Retail Area with a dustless material, including those materials set forth in Meridian City Code 11 -3C -5B-1. 8. Section 6.9 — Sunset Provision. Timber Creek objects to Condition #8 for the same reasons set forth above relating to Condition #1. 5 5 663.0002.11474218.1 November 6, 2018 Page 5 9. Leeching Pond. Meridian City Code 11 -3G -3B-8 requires that all ponds "with a permanent water level" shall have recirculated water and maintained in a manner such that it does not become a mosquito breeding ground. Timber Creek objects to Condition 49 as there will, not be a leeching pond on the Recycling Property intended to have a permanent water level, The areas designated as leeching ponds will catch runoff water from the Recycling Property and evaporate it as soon as possible. As there will not be a permanent water level, a recirculating system would provide no benefit to Timber Creek or the City of Meridian. Instead, Timber Creek is amendable to adding the following clause: Timber Creek shall treat or address any standing water on the Recycling Property so it does not become a mosquito breeding ground. 10. 300 Foot Radius. Condition #10 originates from Meridian City Code 11-4-3-25- A, which is applicable only to industrial uses. Timber Creek objects to Condition #10 as it proposes to impose the 300 foot use restriction to the entirely of the Property when the City has take the position that only the Recycling Activities on the Recycling Property constitute industrial use. As currently drafted, Timber Creek and Owner/Developer would be prohibited from using any mechanical equipment on any portion of the entire Property that is within 300 feet of a residential district. This prohibition would apply not only to the Recycling Activities, but bar any other use on the entire Property involving mechanical equipment. For example, Timber Creek and Owner/Developer could not engage in any agricultural use of the Property within 300 feet of a residential district without resorting to pre -industrial era farming techniques. To keep with the standards and spirit of the 1,000 foot limitation in Section 6.8.2 of the approved Amended DA, and also protect existing residential dwelling, Timber Creek proposes the following: All mechanical equipment emissions generated by the Recycling Activities on the Recycling Property shall be conducted a minimum of three hundred feet (300') from any new or current residential dwelling, as this term is defined in Meridian City Code 11-1-12-A, which is occupied full time. 11. Solid Waste - Nuisance. Condition #11 is largely duplicative of Condition #4,as it is intended to prevent nuisances on the Property. Being duplicative in nature, Timber Creek sees no need to add Condition #11 to the Amended DA. 12. Disposal of Solid Waste. Timber Creek is opposed to Condition 912 as drafted because it could be interpreted to make the Recycling Activities prohibited. Timber Creek would accept the following: 5 5 663.0002.11474218.1 November 6, 2018 Page 6 Timber Creek shall not burn or incinerate any Recycling Materials on the Property but shall be permitted to bury processed Recycling Materials or otherwise process Recycling Materials as permitted in this Agreement. 13. Applicable Laws and Regulations. Condition #13 is duplicative of Condition #5 and should not be added as a condition to the Amended DA, 14. Note. a. Odor Management Plan, Timber Creek opposes the proposal to attach a copy of the Odor Management Plan to the Amended DA. Timber Creek is already required to provide a copy to the City of Meridian (Section 6.2.1 of the Amended DA) so attaching a copy provides no additional benefit. Further, it is anticipated that the Odor Management Plan will change and be modified, with Idaho Department of Environmental Quality's consent. When the Odor Management Plan is amended, it will require amending the Amended DA to replace the previous Odor Management Plan with the new. b. Landscape Plan. Timber Creek opposes adding another landscaping plan to the Amended DA, The Site Plan depicts the type of berm and trees that will be installed to satisfy the screening requirements of Section 6.3.2 "of the Amended DA. 15. Conclusion. The accepted and revised Conditions in this memorandum provide additional protections against potential impacts which may be caused by Tier 2 composting and fill in potential gaps in the Amended DA. Timber Creek respectfully requests that the Council approve the accepted and revised Conditions as set forth in this memorandum. JTC: HAWLEY LLP 55663.0002.11474218.1