Z - Petition for Judicial Review 4/171
Charlene Way
From:Josh Leonard <josh@brianwebblegal.com>
Sent:Tuesday, April 16, 2019 11:40 PM
To:Josh Leonard
Cc:Brian Webb Legal
Subject:electronic service of Petition for Judicial Review in Application No. H-2018-0042
Attachments:Petition for Judicial Review.pdf
Please see attached, the Petition for Judicial Review in Application No. H-2018-0042, filed this evening.
Sincerely,
Joshua J. Leonard, Attorney
BRIAN WEBB LEGAL
Office: (208) 331-9393
Direct: (208) 813-9219
CONFIDENTIALITY NOTICE: This communication is confidential and may contain privileged information. If you received this
communication in error, please advise me by reply email and immediately delete the message and any attachments
without copying or disclosing the contents. Thank you.
Petition for Judicial Review – p. 1
Joshua J. Leonard (7238)
josh@brianwebblegal.com
BRIAN WEBB LEGAL
971 E. Winding Creek Drive
Eagle, Idaho 83616
Telephone: (208) 331-9393
Fax: (208) 331-9009
Attorneys for Petitioners
IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE
STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA
CRAIG and NICOLE BROWN, husband
and wife; DALLAS “GENE” and
VICTORIA “VICKI” REYNOLDS,
husband and wife; TROY and DEBBIE
ALLEN, husband and wife; TODD and
KIMBERLY EDGAR, husband and wife;
MILLER ACRES, LLC, an Idaho limited
liability company; KATHLEEN BRITT, an
individual; JAMES and ANGIE COX,
husband and wife; PATRICIA HAGLER, an
individual; and TRANQUIL ESTATES
HOA, INC., an Idaho non-profit corporation,
Petitioners,
vs.
CITY OF MERIDIAN, IDAHO, BY AND
THROUGH ITS CITY COUNCIL,
Respondents.
Case No.
PETITION FOR
JUDICIAL REVIEW
The above-named Petitioners hereby petition this Court for judicial review as follows:
INTRODUCTION
1. The name and entity of whose action judicial review is sought is the City of
Meridian, Idaho (the “City”), a municipal corporation duly formed and existing pursuant to the
laws of the state of Idaho.
Petition for Judicial Review – p. 2
2. The title of the court to which the petition in this matter is taken is the District Court
of the Fourth Judicial District of the State of Idaho, in and for Ada County.
3. The matters that are the subject of this Petition for Judicial Review (this “Petition”)
are:
a. the City’s approval, on reconsideration, on or about March 19, 2019, of
Application No. H-2018-0042, which was a request by Michael Murgoitio, on behalf of Timber
Creek Recycling (“Timber Creek”), for an amendment to the Development Agreement between
the City and L&G Murgoitio, LLC, which was executed on or about August 17, 2015, by Gary
and Linda Murgoitio (on behalf of L&G Murgoitio, LLC), and on or about January 26, 2016, by
Tammy De Weerd and Jaycee L. Holman (on behalf of the City), and which was recorded in the
official records of Ada County, Idaho, as instrument no. 2016-007075 (the “Development
Agreement”);
b. the City’s failure to require Timber Creek to request and obtain a
conditional use permit (a “C.U.P.”) from the City, in addition to requesting and obtaining
amendments to the Development Agreement, which C.U.P. is and was required by the City’s own
Unified Development Code prior to any expansion or enlargement of a nonconforming use;
c. the City’s approval of Timber Creek’s untimely application for amendments
to the Development Agreement, which application was submitted to the City over two years after
the deadline specified in the City’s own Unified Development Code for applications requesting
amendments to a development agreement;
d. the City’s violation of its express policy against encouraging the
continuation of nonconforming uses;
Petition for Judicial Review – p. 3
e. the City’s failure, in approving Application No. H-2018-0042, to include
several conditions of approval that are expressly required in the City’s own Unified Development
Code for the type of nonconforming use that Timber Creek proposed to expand and/or enlarge on
the property owned by L&G Murgoitio, LLC, which property (the “Subject Property”) is the
subject of Timber Creek’s Application No. H-2018-0042; and
f. procedural due process violations by the City; and
g. substantive due process violations by the City.
PARTIES
4. Petitioners Craig and Nicole Brown (the “Browns”) are a married couple who own
real property, addressed as 7524 S. Locust Grove Road, Meridian, Ada County, Idaho, designated
by the Ada County Assessor as its Parcel No. R5147110322, which is located near the Subject
Property.
5. Petitioners the Browns are affected persons (as that term is defined in I.C. § 67-
6521) by reason of:
a. possessing a bona fide interest in real property that is located approximately
sixty-five feet (65’) from the Subject Property, and
b. their property and their property rights having been adversely affected by
the City’s approval of Application No. H-2018-0042 without the City also requiring Timber Creek
to apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated by the City’s
Unified Development Code, and
c. suffering particularized injuries in fact as a result of the City’s approval of
Application No. H-2018-0042 without the City also requiring Timber Creek to apply for and obtain
a C.U.P., which C.U.P. must include the conditions mandated by the City’s Unified Development
Code, and
Petition for Judicial Review – p. 4
d. suffering particularized injuries in fact as a result of the City’s violations of
procedural and substantive due process.
6. Petitioners Dallas (Gene) and Victoria (Vicki) Reynolds (the “Reynolds”) are a
married couple who own real property, addressed as 7838 Tranquility Lane, Meridian, Ada
County, Idaho, designated by the Ada County Assessor as its Parcel No. R8522680600, which is
located near the Subject Property.
7. Petitioners the Reynolds are affected persons (as that term is defined in I.C. § 67-
6521) by reason of:
a. possessing a bona fide interest in real property that is located near the
Subject Property, and
b. their property and their property rights having been adversely affected by
the City’s approval of Application No. H-2018-0042 without the City also requiring Timber Creek
to apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated by the City’s
Unified Development Code, and
c. suffering particularized injuries in fact as a result of the City’s approval of
Application No. H-2018-0042 without the City also requiring Timber Creek to apply for and obtain
a C.U.P., which C.U.P. must include the conditions mandated by the City’s Unified Development
Code, and
d. suffering particularized injuries in fact as a result of the City’s violations of
procedural and substantive due process.
8. Petitioners James and Angie Cox (the “Coxes”) are a married couple who own real
property, addressed as 1305 E. Columbia Road, Meridian, Ada County, Idaho, designated by the
Ada County Assessor as its Parcel No. S1407110020, which is located near the Subject Property.
Petition for Judicial Review – p. 5
9. Petitioners the Coxes are affected persons (as that term is defined in I.C. § 67-6521)
by reason of:
a. possessing a bona fide interest in real property that is located approximately
fifty feet (50’) from the Subject Property, and
b. their property and their property rights having been adversely affected by
the City’s approval of Application No. H-2018-0042 without the City also requiring Timber Creek
to apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated by the City’s
Unified Development Code, and
c. suffering particularized injuries in fact as a result of the City’s approval of
Application No. H-2018-0042 without the City also requiring Timber Creek to apply for and obtain
a C.U.P., which C.U.P. must include the conditions mandated by the City’s Unified Development
Code, and
d. suffering particularized injuries in fact as a result of the City’s violations of
procedural and substantive due process.
10. Petitioners Troy and Debbie Allen (the “Allens”) are a married couple who own
real property, addressed as 775 E. Columbia Road, Meridian, Ada County, Idaho, designated by
the Ada County Assessor as its Parcel No. R1425680010, which is located near the Subject
Property.
11. Petitioners the Allens are affected persons (as that term is defined in I.C. § 67-6521)
by reason of:
a. possessing a bona fide interest in real property that is located near the
Subject Property, and
Petition for Judicial Review – p. 6
b. their property and their property rights having been adversely affected by
the City’s approval of Application No. H-2018-0042 without the City also requiring Timber Creek
to apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated by the City’s
Unified Development Code, and
c. suffering particularized injuries in fact as a result of the City’s approval of
Application No. H-2018-0042 without the City also requiring Timber Creek to apply for and obtain
a C.U.P., which C.U.P. must include the conditions mandated by the City’s Unified Development
Code, and
d. suffering particularized injuries in fact as a result of the City’s violations of
procedural and substantive due process.
12. Petitioners Todd and Kimberly Edgar (the “Edgars”) are a married couple who own
real property, addressed as 1410 E. Gravel Lane, Meridian, Ada County, Idaho, designated by the
Ada County Assessor as its Parcel No. R1425680010, which is located near Subject Property.
13. Petitioners the Edgars are affected persons (as that term is defined in I.C. § 67-
6521) by reason of:
a. possessing a bona fide interest in real property that is located near the
Subject Property, and
b. their property and their property rights having been adversely affected by
the City’s approval of Application No. H-2018-0042 without the City also requiring Timber Creek
to apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated by the City’s
Unified Development Code, and
c. suffering particularized injuries in fact as a result of the City’s approval of
Application No. H-2018-0042 without the City also requiring Timber Creek to apply for and obtain
Petition for Judicial Review – p. 7
a C.U.P., which C.U.P. must include the conditions mandated by the City’s Unified Development
Code, and
d. suffering particularized injuries in fact as a result of the City’s violations of
procedural and substantive due process.
14. Petitioner Patricia Hagler (“Hagler”) is an individual who owns real property,
addressed as 7200 S. Locust Grove Road, Meridian, Ada County, Idaho, designated by the Ada
County Assessor as its Parcel No. R7406180010, which is located near the Subject Property.
15. Petitioner Hagler is an affected person (as that term is defined in I.C. § 67-6521)
by reason of:
a. possessing a bona fide interest in real property that is located near the
Subject Property, and
b. her property and her property rights having been adversely affected by the
City’s approval of Application No. H-2018-0042 without the City also requiring Timber Creek to
apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated by the City’s
Unified Development Code, and
c. suffering particularized injuries in fact as a result of the City’s approval of
Application No. H-2018-0042 without the City also requiring Timber Creek to apply for and obtain
a C.U.P., which C.U.P. must include the conditions mandated by the City’s Unified Development
Code, and
d. suffering particularized injuries in fact as a result of the City’s violations of
procedural and substantive due process.
16. Petitioner Miller Acres, LLC (“Miller Acres”), is a limited liability company, duly
formed and existing pursuant to the laws of the state of Idaho.
Petition for Judicial Review – p. 8
17. Petitioner Miller Acres owns multiple parcels of real property, addressed as E. Lake
Hazel Road, Meridian, Ada County, Idaho, designated by the Ada County Assessor as its Parcel
Nos. S1406244200 and S1406212600, which are located near the Subject Property.
18. Petitioner Miller Acres is an affected person (as that term is defined in I.C. § 67-
6521) by reason of:
a. possessing a bona fide interest in parcels of real property that are located
near the property that was the subject of Application No. H-2018-0042, and
b. its properties and its property rights having been adversely affected by the
City’s approval of Application No. H-2018-0042 without the City also requiring Timber Creek to
apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated by the City’s
Unified Development Code, and
c. suffering particularized injuries in fact as a result of the City’s approval of
Application No. H-2018-0042 without the City also requiring Timber Creek to apply for and obtain
a C.U.P., which C.U.P. must include the conditions mandated by the City’s Unified Development
Code, and
d. suffering particularized injuries in fact as a result of the City’s violations of
procedural and substantive due process.
19. Petitioner Kathleen Britt (“Britt”) is an individual who owns real property,
addressed as 8250 S. Jardine Lane, Meridian, Ada County, Idaho, designated by the Ada County
Assessor as its Parcel No. R4580130020, which is located near the Subject Property.
20. Petitioner Britt is an affected person (as that term is defined in I.C. § 67-6521) by
reason of:
Petition for Judicial Review – p. 9
a. possessing a bona fide interest in real property that is located near the
Subject Property, and
b. her property and her property rights having been adversely affected by the
City’s approval of Application No. H-2018-0042 without the City also requiring Timber Creek to
apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated by the City’s
Unified Development Code, and
c. suffering particularized injuries in fact as a result of the City’s approval of
Application No. H-2018-0042 without the City also requiring Timber Creek to apply for and obtain
a C.U.P., which C.U.P. must include the conditions mandated by the City’s Unified Development
Code, and
d. suffering particularized injuries in fact as a result of the City’s violations of
procedural and substantive due process.
21. Petitioner Tranquil Estates, Inc. (“Tranquil Estates”), is a nonprofit corporation,
duly formed and existing pursuant to the laws of the state of Idaho.
22. Petitioner Tranquil Estates is an association of seven (7) or more owners of real
property, all of which is located near the Subject Property.
23. Petitioner Tranquil Estates is an affected person (as that term is defined in I.C. §
67-6521) by reason of:
a. its homeowner-members each possessing a bona fide interest in parcels of
real property that are located near the Subject Property, and
b. its homeowner-members’ properties, and their respective property rights,
having been adversely affected by the City’s approval of Application No. H-2018-0042 without
Petition for Judicial Review – p. 10
the City also requiring Timber Creek to apply for and obtain a C.U.P., which C.U.P. must include
the conditions mandated by the City’s Unified Development Code, and
c. its homeowner-members having suffered particularized injuries in fact as a
result of the City’s approval of Application No. H-2018-0042 without the City also requiring
Timber Creek to apply for and obtain a C.U.P., which C.U.P. must include the conditions mandated
by the City’s Unified Development Code, and
d. its homeowner-members having suffered particularized injuries in fact as a
result of the City’s violations of procedural and substantive due process.
24. Respondent the City of Meridian, Idaho (the “City”) is a municipal corporation,
duly formed and existing pursuant to the laws of the state of Idaho.
25. Respondent the City Council of the City of Meridian, Idaho (the “Council”), is the
governing body of the City.
JURISDICTION AND VENUE
26. This Court has jurisdiction over this matter pursuant to Idaho Code (“I.C”) § 67-
6521, as Petitioners are persons affected by a final agency action, who have suffered and alleged
substantial harm to their real property interests.
27. Venue is proper in this Court, pursuant to I.C. § 67-5272, because:
a. all hearings on Application No. H-2018-0042 were held at Meridian City
Hall, which is in Ada County, Idaho;
b. both the final agency action taken --approval of the amended Development
Agreement-- and the agency action not taken --failure to require a conditional use permit (a
“C.U.P.”)-- occurred within the City, which is in Ada County, Idaho; and
c. all aggrieved parties (Petitioners) reside in Ada County, Idaho; and
d. Subject Property is located within the City, and is in Ada County, Idaho.
Petition for Judicial Review – p. 11
SUBSTANTIAL RIGHTS PREJUDICED
28. As a result of the adverse effects and particularized injuries in fact set forth above
for each of the respective Petitioners, the substantial rights of the Petitioners have been prejudiced.
ADMINISTRATIVE REMEDIES EXHAUSTED
29. Petitioners have exhausted their administrative remedies, as required by law and
administrative rule.
FACTUAL BASIS
30. Prior to being annexed into the City in January of 2016, the Subject Property was
zoned by Ada County as “RUT” (Rural-Urban Transition), which allows agricultural and rural
residential uses to continue, but provides standards that allow higher density redevelopment to
occur as public facilities are extended to the Subject Property, which often happens after
annexation.
31. In 2016, the City annexed the Subject Property and conditionally zoned it as R-4
(Medium Density Residential District).
32. To define and clarify the conditions placed on the City’s annexation and zoning of
the Subject Property, the City required the owner of the Subject Property, L&G Murgoitio, LLC,
to enter into the Development Agreement, which was negotiated and signed before any public
hearings were held on the annexation.
33. As a concession to L&G Murgoitio, LLC, the purported owner of the Subject
Property, the City, in the Development Agreement, agreed to recognize the nonconforming uses
of the Subject Property that existed as of the date of annexation and the original zoning designation.
See Development Agreement, § 4.
34. The uses that existed on the Subject Property in January of 2016, at the time the
Subject Property was annexed into the City, did not include the right to expand Timber Creek’s
Petition for Judicial Review – p. 12
operation on the Subject Property to include an unregulated, unenforced heavy industrial recycling
and composting facility on residentially-zoned property.
35. On or about April 11, 2018, Michael Murgoitio (“Murgoitio,” the applicant,
representing Timber Creek) signed and submitted an application for the project, which was entitled
“Timber Creek Recycling,” to the City (the “Application”), in which Murgoitio requested review
of a “Development Agreement Modification.” See Application, filed April 11, 2018, a copy of
which must be included in the Agency Record.
36. Neither Murgoitio nor Timber Creek applied for a C.U.P., which was (and is)
required by the City’s Unified Development Code for any expansion and enlargement of a non-
conforming use.
37. The Application submitted by Murgoitio on behalf of Timber Creek was not filed
“prior to signature of the agreement by all parties” (City’s Unified Development Code § 11-5B-
3.F.3), which is the deadline for initiation of a development agreement modification. Therefore,
the Application was untimely and should not have been accepted by the City or considered by the
Council.
38. On July 17, 2018, the City Council of the City (the “Council”) held a public hearing
on Timber Creek’s request to modify the Development Agreement.
39. The City’s staff (Sonya Allen, Associate City Planner), in the Staff Report to the
Council for the July 17, 2018, public hearing (the “July 17 Staff Report”), recommended denial of
Timber Creek’s request to modify the Development Agreement, citing the following reasons
(which were contained in the section of the July 17 Staff Report entitled “Staff Concerns”):
Petition for Judicial Review – p. 13
a. “The current R-4 zoning of the property primarily allows for residential uses
and other low impact uses as identified in UDC [Uniform Development Code] Table 11-2A-2;
industrial uses are prohibited.”
b. “The existing and proposed use is inconsistent with these designations [the
R-4 zoning designation and the Comprehensive Plan “FLUM” designation] and wouldn’t have
been allowed to operate in the R-4 zoning district in the City if it hadn’t been operating in the
County when the City annexed the property and allowed the use to continue under the parameters
contained in the DA [Development Agreement.”
c. “Expanding the use to a more intense industrial use is prohibited and should
not be allowed through a modification to the DA [Development Agreement] or through other
means.”
d. “An amendment to allow Industrial use of the property would negatively
impact existing and further planned and entitled adjacent residential properties.”
e. “Staff is concerned that if the proposed industrial use is allowed to expand
under a DA [Development Agreement] amendment, that it would become a liability to the City.”
f. “The primary purpose of zoning is to segregate uses that are incompatible
and prevent new development from interfering with existing uses and/or to preserve the
“character” of a community. The proposed use would create just that, an incompatible use adjacent
to existing and future low density residential properties and impact the rural residential/agricultural
character of this area.”
g. “Therefore, staff recommends denial of the applicant’s proposed
modifications to the DA [Development Agreement] based on the proposed use being a prohibited
Petition for Judicial Review – p. 14
use in the R-4 district and not being consistent with the Comprehensive Plan based on the analysis
above.” (Emphasis in original.)
40. The July 17 Staff Report included the following statement:
Note: Because the Director deemed the proposed use to be heavy industrial and
because of the potential impact on adjacent residential properties, radius notices
were sent to property owners within 1,000 feet of the external property boundaries
instead of the typical 300 feet in accord with UDC [Unified Development Code]
11-5A-5E.2c.
July 17 Staff Report, § V.C. (italics in original).
41. The July 17 Staff Report also described the existing non-conforming use of the
Subject Property, which use the City permitted to continue after annexation, pursuant to the
concessions the City made to L&G Murgoitio, LLC, in the Development Agreement:
A. Existing Land Use(s): An agriculturally based wood recycling business
currently operates on this property in the R-4 zoning district.
July 17 Staff Report, § VI.A.
42. The expansion and enlargement of the non-conforming use that Murgoitio/Timber
Creek proposed for the Subject Property was significant, as evidenced by the determination by the
City’s Planning Director, Bill Parsons, that the proposed expanded and enlarged use was “heavy
industrial” in nature. See July 17 Staff Report, § V.C. (italics in original).
43. The Council continued the July 17, 2018, public hearing “to allow the applicant
[Murgoitio and/or Timber Creek] time to further refine their request based on items that were
discussed during the public hearing.” Memorandum from Bill Parsons, Planning Supervisor, to the
City’s Mayor and Council, dated September 11, 2018, entitled “RE: Timber Creek Recycling
Update (H-2018-0042) September 18th, City Council Meeting” (“Parsons Memorandum”), p. 1.
44. The Council, on September 18, 2018, continued the public hearing that began on
July 17, 2018. During that same Council meeting, after closing the public hearing, the Council
Petition for Judicial Review – p. 15
voted (over City staff’s recommendation of denial) to approve Timber Creek’s request, in
Application No. H-2018-0042, to modify the Development Agreement.
45. It is the custom of the City for City staff to bring a proposed draft Findings of Fact,
Conclusions of Law and Order back to the Council a few weeks after the Council initially votes to
approve a land use application (as it did on September 18, 2018).
46. The Council, on November 7, 2018, and on November 20, 2018, held public
hearings for the sole purpose of reviewing and considering recommendations from the City’s staff
as to conditions of approval of Timber Creek’s request for modifications to the Development
Agreement.
47. At the conclusion of the November 20, 2018, public hearing, the Council voted to
close the public hearing and continue the matter to December 4, 2018, to allow the Council an
opportunity “to make sure that the language of the conditions of approval as discussed during the
public hearing was clear and understandable and met the Council’s intent.” City of Meridian
Modified Findings of Fact, Conclusions of Law and Decision & Order, adopted March 19, 2019
(“Order”), § A.1.d.
48. On December 4, 2018, the Council voted to approve “the Development Agreement
Modification Provisions as presented and the Findings of Fact, Conclusions of Law for Timber
Creek Recycling H-2018-0042.” Order, § A.1.d.
49. On December 18, 2018, the City received two (2) timely requests for
reconsideration of the City’s Order approving Timber Creek’s request for modifications to the
Development Agreement:
a. Request for Reconsideration by attorney Joshua Leonard on behalf of
clients [the Petitioners]; and
Petition for Judicial Review – p. 16
b. Request for Reconsideration by attorney Mark Perison on behalf of clients.
50. On February 5, 2019, the Council voted to reconsider its Order approving Timber
Creek’s request for modifications to the Development Agreement, but limited its reconsideration
to “more clearly state the findings of fact and conclusions of law from the existing record,” “to
more clearly articulate within the record those findings and conclusions” (recording of February
5, 2019, Meridian City Council meeting, at [approximately] the 10:00 mark,
https://youtu.be/H6AsgJk75rw), and to “make a cleaner record for appeal” (Id., at [approximately]
the 11:35 mark).
51. On March 19, 2019, the Council reviewed and approved the Order.
52. On multiple occasions throughout the pendency of Timber Creek’s Application No.
H-2018-0042, Petitioners (and Petitioners’ legal counsel) advised the City, the Council, and the
City’s legal counsel that the City’s own Unified Development Code required Murgoitio/Timber
Creek to apply for and obtain a C.U.P. prior to expanding or extending its non-conforming use,
but the City, the Council, and the City’s legal counsel disagreed.
53. As the “persons” (as that term is defined in Section 67-5201(15) of Idaho Code)
who petitioned the City for reconsideration of its approval of Timber Creek’s Application No. H-
2018-0042, Petitioners are a “Party” as defined in Section 67-5201(13) of Idaho Code.
PRELIMINARY STATEMENT OF ISSUES
54. A preliminary statement of the issues for judicial review that the Petitioners intend
to assert includes, but is not necessarily limited to, the following:
a. Did the City and/or the Council, by not rejecting Application No. H-2018-
0042 as untimely, pursuant to the deadline contained in the City’s Unified Development Code for
initiating amendments to a development agreement, violate the City’s Unified Development Code
and/or Petitioners due process rights?
Petition for Judicial Review – p. 17
b. Did the City and/or the Council, by failing to require the applicant,
Murgoitio and/or Timber Creek, to apply for and obtain a C.U.P. prior to expanding the non-
conforming use on the Subject Property to be a “heavy industrial” use, violate the City’s Unified
Development Code?
c. Did the City and/or the Council, by approving Application No. H-2018-
0042 and allowing the unlawful and unpermitted expansion and enlargement of the existing non-
conforming use on the Subject Property, violate the City’s stated policy “not to encourage their
[non-conforming uses’] continuation” (Unified Development Code § 11-1B-1)?
d. Did the City and/or the Council, by failing to include several conditions, all
of which were made mandatory by the Uniform Development Code, on the City’s unlawful
approval of the enlarged and expanded non-conforming use of the Subject Property, violate the
City’s Unified Development Code?
e. Did the City and/or the Council, by accepting and considering an
application (Application No. H-2018-0042) from Murgoitio on behalf of “L&G Murgoitio, LLC,”
a business entity that did not exist on the date such application was filed, violate Petitioners’ due
process rights, the City’s Unified Development Code, and Idaho law?
f. Did the City and/or the Council, by approving modifications to the
Development Agreement that effectively authorized the enlargement and/or expansion of the non-
conforming use that existed on the Subject Property on the date it was annexed into the City,
without also requiring Murgoitio/Timber Creek to apply for and obtain a C.U.P., exceed its
statutory authority and/or its authority under the City’s own Unified Development Act?
Petition for Judicial Review – p. 18
g. Did the City and/or the Council, by approving modifications to the
Development Agreement that had the effect of apparently authorizing the enlargement and/or
expansion of the non-conforming use, act in violation of the public health, safety, and/or welfare?
h. Were the actions taken by the City and/or the Council on Application No.
H-2018-0042 unsupported by substantial evidence on the record as a whole?
i. Was approval of Application No. H-2018-0042 by the City and/or the
Council arbitrary and capricious?
j. Did the City and/or the Council, by approving Application No. H-2018-
0042, act without a reasonable basis in fact or law?
k. Did Genesis Milam, as a member of the Council, by failing to disclose, at
or before the first public hearing on Application No. H-2018-0042, her personal relationship with
applicant Murgoitio, violate Petitioners’ due process rights, under the Fifth Amendment of the
United States Constitution, made applicable to the states by Section 1 of the Fourteenth
Amendment of the United States Constitution, and also under Article I, Section 13 of the Idaho
Constitution?
l. Did Genesis Milam, as a member of the Council, by failing to disclose, at
or before the first public hearing on Application No. H-2018-0042, her visit to the Subject
Property, violate Petitioners’ due process rights, under the Fifth Amendment of the United States
Constitution, made applicable to the states by Section 1 of the Fourteenth Amendment of the
United States Constitution, and/or under Article I, Section 13 of the Idaho Constitution?
m. Did Luke Cavener, a member of the Council, by failing to disclose, at or
before the first public hearing on Application No. H-2018-0042, his personal relationship with
applicant Murgoitio, violate Petitioners’ due process rights, under the Fifth Amendment of the
Petition for Judicial Review – p. 19
United States Constitution, made applicable to the states by Section 1 of the Fourteenth
Amendment of the United States Constitution, and/or under Article I, Section 13 of the Idaho
Constitution?
n. Did the City and the Council, by failing to include citizens whose property
is located outside of the City’s municipal boundaries in the protections contained in the minimal
conditions that were included in the approved modifications to the Development Agreement,
violate Petitioners’ rights to equal protection under the law, pursuant to the Fourteenth Amendment
of the United States Constitution?
o. Did the City’s March 19, 2019, Order include a “Reasoned Statement,”
which was required by Title 67, Chapter 65, Idaho Code, and by Title 67, Chapter 52, Idaho Code,
to be included in the Order?
Petitioners reserve all rights to augment and supplement the foregoing issues, pursuant to
I.R.C.P. 84(d)(5).
PRAYER FOR RELIEF
55. Petitioners respectfully pray this Court to:
a. enter its findings on each of the issues identified in the Preliminary
Statement of Issues, above;
b. reverse the City’s approval of the Development Agreement;
c. remand the City’s approval of the Development Agreement back to the City;
d. on remand, order the City to require Murgoitio/Timber Creek to apply for
and obtain a C.U.P. prior to expanding or extending the non-conforming use that exists on the
Subject Property;
e. on remand, order the City and the Council to follow the procedure required
by the City’s Unified Development Code on any application for a C.U.P. submitted or filed by
Petition for Judicial Review – p. 20
Murgoitio/Timber Creek or any representative of Murgoitio/Timber Creek for the expansion or
extension of a non-conforming use on the Subject Property;
f. on remand, order the City to include, in any subsequent approval or issuance
of a C.U.P. for expansion or extension of a non-conforming use on the Subject Property, the
mandatory conditions prescribed in the City’s Unified Development Code for recycling and
composting operations located near residential zoning districts; and
g. on remand, order the City to include, in any subsequent approval or issuance
of a C.U.P. for expansion or extension of a non-conforming use on the Subject Property, the
mandatory conditions prescribed in the City’s Unified Development Code for heavy industrial uses
located near residential zoning districts.
56. Petitioners also pray this Court, pursuant to Idaho Code § 12-118 and any other
applicable fee provisions contained in law, regulation, or rule, to order the City and the Council to
reimburse Petitioners for the costs and attorneys’ fees they have been required to pay to challenge
the City’s and the Council’s violations, detailed herein and in further pleadings.
57. Petitioners also pray this Court (or move this Court), pursuant to I.R.C.P.
84(g)(1)(A), and based on the facts alleged herein and certified in “Attachment A” (attached hereto
and incorporated herein by this reference), for relief from the pre-payment requirement contained
in I.R.C.P. 84(g)(1)(A)(i), which was not feasible under the circumstances.
TRANSCRIPT REQUESTED
58. Petitioners respectively request that the City, within fourteen (14) days of the filing
of this Petition, pursuant to I.R.C.P. 84(g)(1)(C), prepare and file the transcript of all in-person
oral reports from City staff, all in-person testimony of Murgoitio and Timber Creek and their
respective representatives, all in-person testimony of members of the public (including, without
limitation, Petitioners), all in-person testimony of City staff, all questions and deliberations of the
Petition for Judicial Review – p. 21
Council, all voice votes of the Council taken on any and all motions, and all other recorded portions
of the record in Application No. H-2018-0042. Specifically, and without limiting the foregoing,
Petitioners respectfully request that the City, within the time period mentioned above and
prescribed by Rule 84(g)(1)(C) of the Idaho Rule of Civil Procedure (“I.R.C.P.”), prepare and file
transcripts of those portions of the November 7, 2018, November 20, 2018, December 4, 2018,
December 18, 2018, February 5, 2019, and March 19, 2019, Council meetings, including (but not
limited to) the above-referenced in-person oral reports, in-person testimony, questions and
deliberations of the Council, voice votes of the Council, and all other recorded portions of the
record in Application No. H-2018-0042. Upon information and belief, all of the hearings and
meetings of the Council were video recorded, and Petitioners believe, and hereby allege, that
Meridian City Clerk C.Jay Coles is the custodian of, and possesses, all such recordings and minutes
of the identified Council meetings, and that the address of the Meridian City Clerk is Office of the
City Clerk, 33 E. Broadway, Suite 104, Meridian, Idaho 83642. Petitioners reserve all rights to
object to the transcript(s) the City files with this Court in the event such transcript(s) is/are
incomplete or contain(s) any inaccuracies. Petitioners also reserve all rights to move this Court to
order the City to provide and file a more complete copy of such transcript(s). Further, the
Petitioners reserve all rights to submit evidence of violations of law, rule, and/or procedure, and/or
evidence of irregularities affecting the procedures and proceedings on Application No. H-2018-
0042, that are not shown in the transcript(s) the City files with this Court.
RECORD REQUESTED
59. Petitioners also respectfully request that the City, within forty-two (42) days of
service of this Petition, prepare and file a certified and complete copy of the City’s entire official
agency record in this matter, pursuant to I.C. §§ 67-5249 and 67-5275, and I.R.C.P. 84(f). To
serve the interests of judicial economy and of preserving public funds, Petitioners are willing to
Petition for Judicial Review – p. 22
entertain discussions with Respondents about stipulating to a partial record, pursuant to I.R.C.P.
84(f)(1)(A). Unless and until such a stipulation is entered into and signed by all parties, however,
Petitioners respectfully request that the City’s certified agency record include and contain all
documents and items required in I.C. § 67-5249(2)(a)-(g), by way of I.C. § 67-5275(1)(b).
Petitioners reserve all rights to object to the record the City files with this Court in the event such
record is incomplete or contains any inaccuracies. Petitioners also reserve all rights to move this
Court to order the City to provide and file a more complete copy of the record. Further, the
Petitioners reserve all rights to submit evidence of violations of law, rule, and/or procedure, and/or
evidence of irregularities affecting the procedures and proceedings on Application No. H-2018-
0042, that are not shown in the record the City files with this Court.
I.R.C.P. 84 CERTIFICATION
60. In the attached and incorporated “Attachment A,” the undersigned certified those
items required by I.R.C.P. 84.
For Petitioners,
/S/ Joshua J. Leonard
JOSHUA J. LEONARD
Attorney for Petitioners
Petition for Judicial Review – p. 23
Attachment A
CERTIFICATION BY ATTORNEY FOR PETITIONERS
Pursuant to I.R.C.P. 84(c)(7), I, Joshua J. Leonard, attorney for Petitioners in the within
Petition for Judicial Review, hereby certifies that:
1. This Petition for Judicial Review was electronically served upon respondent
Meridian City, which was the local government rendering the decision challenged in the within
Petition for Judicial Review, and upon Meridian City’s Council, the governing board of Meridian
City.
2. Petitioners timely requested a copy of the transcript and the record from the
Meridian City Clerk, via email, on March 24, 2019; however, the Meridian City Attorney (who
was cc’d on the Petitioners’ request for the transcript and the record from the City) replied, also
via email, on March 25, 2019, that it is the Petition for Judicial Review that prompts the City’s
preparation and production of the transcript and the record, so the City had not, as of March 25,
2019, undertaken those tasks.
3. With the filing of the within Petition for Judicial Review and service of the same
upon the City and the Council now prompting the City’s preparation and production of the
transcript and the record, Petitioners hereby commit to pay the estimated fees for preparation of
the transcript and the record, both of which were timely requested from Meridian City. Petitioners
further commit to pay the difference between the estimated fees and the actual fees for preparation
of the transcript and the record.
SO CERTIFIED, this 16th day of April, 2019.
By: /S/ Joshua J. Leonard
Joshua J. Leonard, Attorney for Petitioners
Petition for Judicial Review – p. 24
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 16th day of April, 2019, I caused to be served a true
copy of the foregoing document by the method(s) indicated, addressed to those persons and parties
identified below:
Meridian City
Attn: Mayor and Council
C/o: C.Jay Coles,
Meridian City Clerk
33 E. Broadway Avenue
Meridian, Idaho
E-Served
Via Facsimile to:
City Clerk C.Jay Coles - (208) 888-4218
Emailed to:
City Clerk’s general email address: cityclerk@meridiancity.org
City Clerk C.Jay Coles - cjcoles@meridiancity.org
Courtesy copies e-mailed to:
Mayor Tammy De Weird - mayortammy@meridiancity.org
President Joe Borton - jborton@meridiancity.org
Vice President Luke Cavener - lcavener@meridiancity.org
Council Member Anne Little Roberts - alittleroberts@meridiancity.org
Council Member Ty Palmer - typalmer@meridiancity.org
Council Member Treg Bernt - tbernt@meridiancity.org
Council Member Genesis Milam - gmilam@meridiancity.org
City Attorney Bill Nary - bnary@meridiancity.org
Mike Murgoitio and Timber Creek Recycling, c/o their attorney, Justin
Cranney of the firm Hawley Troxell - jcranney@hawleytroxell.com
/s/ Joshua J. Leonard