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Z - Request for Reconsideration - Applicant Response��HAWLEY TROXELL JUSTIN T. CRANNEY ADMITTED TO PRACTICE LAW IN IDAHO EMAIL: JCRANNEYQHAWLEYTROXELL.COM DIRECT DIAL: 208.388.4837 DIRECT FAX: 208.954.5934 February 5, 2019 VIA E-MAIL Meridian City Council 33 E. Broadway Ave. Suite 102 Meridian, Idaho 83642 Re: Timber Creek Recycling, LLC Application No H-2018-0042 Reply to Request for Reconsideration Dear Mayor de Weerd, and City Council Member: AI'TORNEYS 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 Timber Creek Recycling, LLC ("Timber Creek") submits this memorandum in reply to the Request for Reconsideration filed on December 17, 2018, by the neighbors of the Timber Creek Recycling site (the "Neighbors"). Timber Creek desires to address two of the points raised by the Neighbors in their Request for Reconsideration. In so doing, Timber Creek is not conceding that the balance of the Neighbor's points are valid. To the contrary, Timber Creek disputes each of the points raised by the Neighbors in the Request for Reconsideration to support the Neighbor's request that the City Council reconsider the approval of the Amended Development Agreement ("Amended DA"). 1. Conditional Use Permit. The Neighbors assert that Timber Creek is required to obtain a conditional use permit for its current use of the property ("Property") on which it conducts its recycling operations and the uses contemplated under the Amended DA. The Neighbors' position appears to be predicated upon the belief that Timber Creek's current and contemplated nonconforming use of the Property constitutes an unlawful expansion or enlargement. This position arises from the Neighbors' position that Timber Creek's nonconforming use is permitted "only if the applicant does not 55663.0002.11667000.2 February 5, 2019 Page 2 expand or extend its nonconforming use beyond the scope and intensity in which it existed in January 2016." Motion for Reconsideration, pg. 3. The Neighbors' position on unlawful expansions or enlargements is incorrect. In determining whether a nonconforming use has been unlawfully enlarged or expanded, the Idaho Supreme Court has adopted a flexible approach that focuses on the character of the alleged enlargement or expansion on a case-by-case basis. Eddins v. City of Lewiston, 150 Idaho 30, 34, 244 P.3d 174, 178 (2010). The analysis of whether a nonconforming use is impermissibly enlarged or expanded focuses on whether "there has been some change in the fundamental or primary use of the property," id. (emphasis added), not whether the use will remain at the same level and intensity as at the time the use became non -conforming. Further, Idaho law is clear that an increase in intensity of a nonconforming use is not an unlawful expansion or extension of the nonconforming use. See, Eddins, 150 Idaho at 34, 244 P.3d at 178 (The mere intensification of a nonconforming use does not render it unlawful.); Baxter v. City of Preston, 115 Idaho 607, 609, 768 P.2d 1340, 1342 (1989) (As a general rule, the mere "intensification" of a nonconforming use does not render it unlawful) (citing Heagen v. Borough of Allendale, 42 N.J.Super. 472, 127 A.2d 181 (1956) (increase in volume of business is not illegal extension); Cullen v. Building Inspector of North Attleborough, 353 Mass. 671, 234 N.E.2d 727 (1968) (mere increase in amount of business done is not in itself proof of unlawful change); Kootenai Cty. v. Harriman -Sayler, 154 Idaho 13, 18, 293 P.3d 637, 642 (2012) (Intensification of a nonconforming use does not generally terminate the nonconforming use.). Following the Idaho Supreme Court's guidance, there is no dispute that, at the time the Property was annexed into the City of Meridian and the Development Agreement was signed and recorded, Timber Creek operated a recycling facility on the Property. As part of that operation, Timber Creek accepted delivery of "Recycling Materials," as defined in the Development Agreement, and conducted the "Recycling Activities," as set forth in the Development Agreement, which, as was frequently testified to by Timber Creek, included the composting of Recycling Materials. Since the recordation of the Development Agreement, there has not been nor will there be under the Amended DA, a change in the "fundamental or primary use" of the Property; Timber Creek will continue to accept Recycling Materials and conduct the Recycling Activities. Such continuity in fundamental or primary use indicates that there is not an unlawful expansion or enlargement of the nonconforming use of the Property. See, Eddins, 150 Idaho at 35, 244 P.3d at 179 ("[b]oth before and after the modifications [the paving company] was engaged in asphalt production by the same basic process. As a matter of law, no change of use has occurred."). Under the Amended DA, there will simply be an increase in the amount of composting occurring on the Property, which does not constitute an unlawful expansion or enlargement. See, Gordon Paving Co. v. Blaine Cty. Bd. of Cty. Commis, 98 Idaho 730, 732, 572 P.2d 164, 166 (1977) (As a matter of law an increase in the volume of use is not an enlargement or extension.). 5 5 663.0002.11667000.2 February 5, 2019 Page 3 Lacking an unlawful expansion or enlargement, the requirements of Meridian City Code §11-1B-1 are inapplicable and a conditional use permit is not required. See, Gordon Paving Co., 98 Idaho at 731, 572 P.2d at 165 (Blaine County zoning ordinances required a variance for non- conforming changes of use or for enlargements or extensions of non -conforming uses. Gordon Paving sought to modernize operations and the Idaho Supreme Court found that modernization was not an enlargement or extension and therefore a variance was not required.). 2. Violation of City of Meridian's Policy The Neighbors also argue that because the Amended DA violates the City's policy on nonconforming use, the City Council was barred from approving the Amended DA. A similar argument was raised in Eddins, where the City of Lewiston argued that "allowing Eddins to replace the recreational vehicles will prolong the nonconforming use, and likely will make it more difficult to satisfy the safety goals of the ordinance by slowing the elimination of the business." Eddins, 150 Idaho at 35, 244 P.3d at 179 (2010). The Idaho Supreme Court rejected this argument, holding: Lewis–Clark Memorial Gardens makes clear that a nonconforming use protects the "fundamental or primary use of the real property in question." 99 Idaho at 681, 587 P.2d at 822. The fundamental or primary use of Eddins' real property—both before and after the ordinance was passed—was to rent spaces for both manufactured homes and recreational vehicles. Consequently, the due process clauses of the Idaho and U.S. Constitutions protect Eddins' ability to continue the fundamental or primary use of his real property. Id. While the City may have a policy to wind down nonconforming uses, such a policy must bow to the constitutional rights held by Timber Creels to continue its recycling operation on the Property. 3. Conclusion. Timber Creek urges the City Council to deny the Motion for Reconsideration. Idaho case law establishes that: a) Timber Creek is not required to obtain a condition use permit; and b) any perceived violation of the City's policy regarding nonconforming use does not render the Amended DA invalid. The balance of the Neighbor's arguments as to why the City Council should reconsider the approval of the Amended DA are likewise insufficient to require City Council to reconsider its approval of the Amended DA. 5 5 663.0002.11667000.2 February 5, 2019 Page 4 Sincerely Ill Justin JTC: NIS & HAWLEY LLP 5 5 66 3.0002.11667000.2