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
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November 6, 2018
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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:
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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
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November 6, 2018
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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.
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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:
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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
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