HomeMy WebLinkAboutJoshua Leonard (Memorandum of Objection on behalf of Consortium of Neighbors)1
Chris Johnson
From:joshuajayleonard@gmail.com
Sent:Friday, July 13, 2018 4:21 PM
To:Chris Johnson; Sonya Allen
Cc:Bill Nary; Andrea Pogue; jcranney@hawleytroxell.com; 'Joshua Leonard'
Subject:H-2018-0042 (Murgoitio / Timber Creek) - Memorandum of Objection
Attachments:2018 07 13 - memo of obj - FINAL (submitted).pdf
Mr. Johnson and Ms. Allen,
Please see the attached Memorandum of Objection, which is in opposition to application no. H-2018-0042. Please ensure this document, with its exhibits, is
added to the record and distributed to the Mayor and City Council Members to review prior to Tuesday night’s public hearing on this application.
I respectively reserve my right to supplement and augment the attached Memorandum of Objection at or prior to Tuesday’s public hearing, at which I intend to
testify as the legal representative of a consortium of neighbors who oppose this application.
Please acknowledge receipt of the attached Memorandum of Objection by responding to this email.
Please contact me (208-891-0874 cell) with any questions or concerns, or if there is any problem downloading or reading the attached Memorandum of
Objection.
Sincerely,
- Joshua Leonard
Cc: Bill Nary, Andrea Pogue, and Justin Cranney (Applicant’s counsel)
Joshua J. Leonard
Attorney at Law
Memorandum of Objection Page 1
MEMORANDUM OF OBJECTION
Application No. H-2018-0042]
I hereby submit this Memorandum of Objection (the “Memorandum”) in opposition to application number H-
2018-0042 (the “Application”) on behalf of a consortium of landowners and residents (collectively, the
“Objectors”), all of whom are opposed to the Application. Each of the Objectors qualifies as an “affected person,”
as that term is defined in the Local Land Use Planning Act (LLUPA).1 Please consider me, Joshua Leonard, and
each of the Objectors, as parties of record in the above-referenced land use application case, pursuant to Section
11-5A-4, Subsection A., of the City Code of the City of Meridian.2
The Application was submitted to the City of Meridian (the “City”) by Mike Murgoitio and Timber Creek
Recycling (collectively, the “Applicant”). The Application asks the City to significantly modify the terms of a
two-year-old development agreement (the “Development Agreement”) between the City and L&G Murgoitio,
LLC (the “Owner”).3 If the City approves the requested modifications to the Development Agreement, the City’s
decision will be reversed on appeal and the Application will be remanded back to the City. This is particularly
true if the City approves the proposed Amended Development Agreement in the form that was submitted with
the Application, because the proposed Amended Development Agreement omits several conditions that are
mandatory, pursuant to City Code.4
A summary of objections to the Application is contained in Section I. of this Memorandum (beginning on page
2), and the objections are more thoroughly discussed in Section IV. (beginning on page 5).
The Development Agreement that the Applicant seeks to modify affects the following three (3) parcels of real
property:
▪ 59.5 +/- acres, identified by the Ada County Assessor as parcel number S1406417700, addressed as 7695
S. Locust Grove Road;
▪ 19.12 +/- acres, identified by the Ada County Assessor as parcel number S1406449900, addressed as 1570
E. Columbia Road; and
▪ 33.46 +/- acres, identified by the Ada County Assessor as parcel number S1405120902, addressed as 7695
S. Locust Grove Road.
These three (3) parcels, above (collectively, the “Property”), are included in the Development Agreement, and
properly are subject to any action taken by the City on Applicant’s request to modify the Development Agreement.
In the Application submitted to the City by the Applicant, the three (3) parcels of real property on which the
Applicant seeks to expand and extend its nonconforming use are:
1 The Local Land Use Planning Act of 1975 (LLUPA) – Idaho Code Title 67, Chapter 65.
2 Names and addresses of the Objectors will be provided either at or prior to the public hearing on the Application, scheduled for
Tuesday, July 17, 2018, at 6:00 p.m.
3 Development Agreement, recorded in the official records of Ada County on January 27, 2016, as instrument number 2016-007075.
4 Unified Development Code of the City of Meridian (hereinafter cited in these footnotes as the “Dev. Code”), which is codified as Title
11 of the City Code of the City of Meridian.
Memorandum in Objection Page 2
▪ 59.5 +/- acres, identified by the Ada County Assessor as parcel number S1406417700, addressed as 7695
S. Locust Grove Road, below;
▪ 19.12 +/- acres, identified by the Ada County Assessor as parcel number S1406449900, addressed as 1570
E. Columbia Road; and
▪ 77.88 +/- acres, identified by the Ada County Assessor as parcel number S1405128305, addressed as 960
E. Columbia Road.
I. SUMMARY OF OBJECTIONS
This Memorandum discusses several objections to the existing use of the Property, the Application, and the
Applicant’s proposed expanded and extended use of the Property. This Memorandum also discusses procedural
errors in the City’s approval of the Development Agreement and in the City’s consideration of the Application.
The objections and procedural errors include:
A. The Applicant missed the Development Code’s deadline to submit its Application requesting
modifications to the Development Agreement.
B. The Development Agreement and the Unified Development Code of the City of Meridian (the
“Development Code”) both prohibit unlawful expansion or extension of existing nonconforming uses.
The Applicant’s proposed enlarged and extended use of the Property is prohibited in the R-4 zoning
district, unless the Applicant applies for and obtains a Conditional Use Permit (“C.U.P.”) from the City.
C. Even if the Applicant properly obtains a C.U.P. approving the expanded and extended nonconforming
use, it would directly violate the City’s adopted policy against encouraging the continuation of
nonconforming uses.
D. The Applicant’s requested modifications to the Development Agreement omit conditions that are required
by the Development Code for industrial uses near residential zoning districts. These required conditions
are necessary to prevent adverse impacts on other peoples’ properties in the area. More importantly,
though, these required conditions are necessary to protect the public health, safety, and welfare.
E. The Applicant’s current use of the Property, although allowed to continue, as it existed in January of 2016,
as a nonconforming use, currently is in violation of the conditions contained in the Development
Agreement.
F. The expanded and extended nonconforming use of the Property, as requested by the Applicant, threatens
the public health, safety, and welfare.
G. Several of the public meetings and public hearings required for the 2016 Development Agreement and for
this Application were improperly noticed or not noticed at all, resulting in a violation of Affected Persons’
(as that term is defined in the Local Land Use Planning Act) due process rights.
H. The business entity “L&G Murgoitio, LLC,” which is the party to which the City bound itself in the 2016
Development Agreement, does not exist.
I. The City requested input on the Application from the wrong irrigation district.
Memorandum in Objection Page 3
Taken together, these objections must result in the City’s denial of the Applicant’s requested modifications to the
Development Agreement. If the City instead opts to violate the Local Land Use Planning Act (LLUPA)5 and the
City’s Development Code by approving the Application, an appeal to the district court will result in reversal of
the City’s decision and the Application will be remanded back to the City for proceedings that comply with the
Local Land Use Planning Act and the City’s Development Code.
II. FACTUAL BACKGROUND
Prior to being annexed by the City in January of 2016, the Property had been 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 property, which often
happens after annexation. In the RUT zoning district, new agricultural uses are limited to those that do not
significantly cause noise, odor, dust, or other nuisances.
In 2016, the City annexed the Property and conditionally zoned it as R-4, “Medium Density Residential District.”
To define and clarify the conditions placed on the annexation and zoning of the Property, the City required the
Owner to enter into the Development Agreement. The Development Agreement was negotiated and signed before
any public hearings were held.
As a concession to the Owner, in the Development Agreement the City agreed to recognize the nonconforming
uses of the Property that existed as of the date of annexation and the original zoning designation.6 The uses that
existed in January of 2016, which were recognized by the City as existing nonconforming uses, did not include
the right to expand the Applicant’s operation to include an unregulated industrial recycling and composting
facility on residentially-zoned property.
III. GOVERNING LAW
The following statutes and ordinances govern the City’s process for considering and deciding the Application:
A. The Local Land Use Planning Act
Idaho municipalities possess no inherent authority to enact ordinances – their authority to make laws must be
expressly granted or necessarily implied from express grants by the Idaho Constitution or by state statute.
Idaho has long recognized the proposition that a municipal corporation, as a creature of the state,
possesses and exercises only those powers either expressly or impliedly granted to it. This position,
also known as “Dillon’s Rule,” has been generally recognized as the prevailing view in Idaho.
Thus, under Dillon’s Rule, a municipal corporation may exercise only those powers granted to it
by either the state constitution or the legislature and the legislature has absolute power to change,
modify or destroy those powers at its discretion.7
The authority of local governments in Idaho to adopt and enforce development codes is derived from the state
constitution, as more particularly set forth in the Local Land Use Planning Act of 1975 (“LLUPA”), which is the
5 The Local Land Use Planning Act of 1975 (LLUPA) – Idaho Code Title 67, Chapter 65.
6 Development Agreement, Section 4.
7 Caesar v. State, 101 Idaho 158, 160, 610 P.2d 517, 519 (1980) (internal citations omitted).
Memorandum in Objection Page 4
exclusive means for local governments in Idaho to implement their planning and zoning authority.8 LLUPA
contains no general grant of planning and zoning power, however. Instead, it confers a series of specific
enumerated powers, which represent the outermost limits of a City’s authority to regulate land use planning and
development.
In enacting LLUPA, the Idaho Legislature declared its purposes:
67-6502. PURPOSE. The purpose of this act shall be to promote the health, safety and
general welfare of the people of the state of Idaho as follows:
(a) To protect property rights while making accommodations for other
necessary types of development such as low-cost housing and mobile home
parks.
…
(f) To encourage urban and urban-type development within incorporated cities.
…
(k) To avoid undue water and air pollution.9
Idaho Supreme Court later distilled LLUPA’s purpose down to a single sentence:
The Local Land Use Planning Act was promulgated to ensure the orderly and effective
development of land to the benefit of Idaho citizens.10
The Applicant’s proposed expansion and extension of its nonconforming use on the Property violates this purpose.
Allowing an intensive industrial use to continue to grow and expand in the midst of an area that is filled with
homes and is designed R-4 is the opposite of “orderly and effective development of land.”
B. Unified Development Code
of the City of Meridian.
The City exercised its LLUPA-derived authority to regulate development by adopting its Development Code,
which governs all development that is occurring or proposed to occur on property located within the City’s
municipal boundaries. One of the adopted City policies supporting the Development Code is:
This title shall be interpreted to equally protect citizens from the undue encroachment on their
private property by their neighbors' uses of their private property and equally protect each citizen's
right to use of their property without creating undue burden upon their neighbors.11
Following the public hearing, after considering the important objections raised by all of the neighbors of the
Property and other opponents of the proposed extension and expansion of the nonconforming industrial use of the
Property, please comply with this policy and deny the Application.
8 Gumprecht v. City of Coeur d’Alene, 104 Idaho 615, 617, 661 P.2d 1214, 1216 (1983), overruled on other grounds by City of Boise
City v. Keep the Commandments Coalition, 143 Idaho 254, 257, 141 P.3d 1123, 1126 (2006).
9 Idaho Code (“I.C.”) Section 67-6502.
10 Whitted v. Canyon County Bd. Of Comm’rs, 137 Idaho 118, 44 P.3d 1173, 1178 (2002) (emphasis added), quoting Urrutia v. Blaine
County, 134 Idaho 353, 357, 2 P.3d 738, 742 (2000).
11 Dev. Code Section 11-1-8.A.
Memorandum in Objection Page 5
IV. OBJECTIONS TO THE APPLICATION
The City’s Development Code, the proposed modifications to the Development Agreement, the process by which
the proposed modifications to the Development Agreement are being considered, the Applicant’s current use of
the Property, and the Applicant’s proposed expanded and extended use of the Property provide the bases for the
following objections to the Application. Taken separately, each of these errors and objections justifies denial of
the Application; taken together, however, these errors and objections require denial of the Application.
A. The Applicant Missed the Deadline to Request
Modifications to the Development Agreement
The City’s Development Code contains an unambiguous fixed deadline by which a request to modify a
development agreement must be initiated:
A development agreement modification may be initiated prior to signature of the agreement
by all parties.12
This section clearly, and without contradiction anywhere else in the Development Code, places a firm deadline
on a party’s ability to request a modification to a development agreement: Prior to execution of the agreement
by all parties. Thus, when a development agreement is executed by the last of the parties to sign it, the window
to initiate modifications to the agreement closes tight. There is no doubt or confusion about this deadline, as it is
clearly written, and it is uncontradicted anywhere in the Development Code. The only path by which the Applicant
lawfully can amend the Development Agreement is by terminating the current Development Agreement, de-
annexing the Property, return it to the pre-annexation designation (RUT), and recommence the process of
annexation and conditional zoning with the City.13 To ignore the unambiguous deadline for modifications to the
D.A. by approving the untimely application would constitute reversible error on appeal. In other words, the City
must comply with the standards it sets, or the Application will be returned to the City with instructions to comply
with those standards.
B. Without a C.U.P, the Proposed Use
is Expressly Prohibited on the Property
The Development Code defines the type of recycling or composting use proposed by the Applicant as an industrial
type of use,14 which is prohibited in the R-4 zoning district.15 In 2010, the Idaho Supreme Court held that any use
that is not expressly authorized or designated, either as a matter of right or upon obtaining a C.U.P., cannot be
pursued there.16 As previously discussed, the only reason the Applicant’s current use exists in an R-4 zone is that
the City, in the Development Agreement, recognized it as an existing nonconforming use, but only to the extent
that it existed on the date of annexation.
12 Dev. Code Section 11-5B-3.F.3. (emphasis added).
13 Alternatively, the Applicant could request and obtain a Conditional Use Permit (“C.U.P.”) from the City. This is discussed in detail
in Subsection B. of Section IV.
14 See definition of “RECYCLING CENTER” in Dev. Code Section 11-1A-1.
15 See Dev. Code Section 11-2C-2, TABLE 11-2C-2, entitled “ALLOWED USES IN THE INDUSTRIAL DISTRICTS.”
16 Gardiner v. Boundary Co. Bd. Of Commr’s, 148 Idaho 764, 229 P.3d 369 (2010), overruled on other grounds.
Memorandum in Objection Page 6
The Idaho Supreme Court, in its decision in Baxter v. City of Preston, laid out a straightforward and relatively
succinct exposition of the law of nonconforming uses:
‘Nonconforming use’ means a use of land which lawfully existed prior to the enactment of a zoning
ordinance and which is maintained after the effective date of the ordinance even though not in
compliance with use restrictions. As a general proposition, the due process clauses of the state and
federal constitutions require that once a zoning ordinance is enacted, nonconforming uses be
allowed to continue.17
Thus the concept of nonconforming uses is intended to ensure that a property owner cannot, by the enactment of
an ordinance or regulation that would prevent or prohibit an ongoing use, be deprived of its due process rights
and the enjoyment of its property associated with that now-prohibited use.
However, the right to continue a nonconforming use is not absolute.
This “grandfather right,” as stated in Bastian v. City of Twin Falls, 104 Idaho 307, 309, 658 P.2d
978, 980 (Idaho Ct. App., 1983), “simply protects the owner from abrupt termination of what had
been a lawful condition or activity on the property. The protection does not extend beyond this
purpose.” The owner of a nonconforming use may lose the protected grandfather right if the
use is enlarged or expanded in violation of a valid zoning ordinance.18
The Idaho Court of Appeals also addressed limits on the continued operation of a nonconforming use, or its
exemption from compliance with new zoning ordinances, upon a desired modification of that use in its decision
in Bastian v. City of Twin Falls, in which the Idaho Court of Appeals held:
The right to continue a nonconforming use or improvement of property derives from the due
process clauses of the state and federal constitutions. This right (often termed a “grandfather right”
in lay parlance) simply protects the owner from abrupt termination of what had been a lawful
condition or activity upon the property. The protection does not extend beyond this purpose. Thus,
nonconforming status is not a talisman from which all zoning controls must retreat. Rather, the
public policy embodied in zoning laws “dictates the firm regulation of nonconforming uses
with a view to their eventual elimination.” From that policy flows the corollary that
nonconforming uses have no inherent right to be extended or enlarged. This corollary is
recognized in nearly all states – the principal exception being Pennsylvania, which adheres to a
doctrine of “natural expansion” of nonconforming uses. Although the Idaho Supreme Court has
not ruled directly on the point, it has held that accessory structures may not be placed upon
nonconforming property unless authorized by ordinance. County of Ada v. Schemm, 96 Idaho 396,
529 P.2d 1268 (1974). The Schemm decision implicitly adopts the corollary against extension
or enlargement of nonconforming uses, except as provided by ordinance. We explicitly adopt
that corollary today. It follows that nonconforming property enjoys no special immunity from
reasonable regulations generally governing the enlargement of buildings.19
In the Bastian case, the Idaho Court of Appeals expressly and explicitly adopted the doctrine that no inherent right
exists to extend or expand a nonconforming use. The only way an expansion right exists is if a municipality, by
17 Baxter v. City of Preston, 115 Idaho 607, 608-09, 768 P.2d 1340, 1341-42 (1989) (internal citations omitted).
18 Id. (emphasis added).
19 Bastian v. City of Twin Falls, 104 Idaho 307, 309-10, 658 P.2d 978, 980-81 (Ct. App., 1983) (internal citations omitted) (emphasis
added).
Memorandum in Objection Page 7
ordinance, grants that right. The City’s Development Code does provide a narrow path for the lawful expansion
and extension of a nonconforming use:
…nonconforming properties, uses, structures, or signs shall not expand or extend the
nonconforming aspect of the property, use, structure, or sign unless approved subject to a
conditional use permit as set forth in section 11-5B-6 of this title.20
The City’s Development Code also provides:
A. The nonconforming use may continue as long as the use remains lawful and is not
expanded or extended, subject to the following provisions:
…
2. Extension: A nonconforming use may be extended to occupy additional
land area only through the approval of a conditional use permit in accord
with the procedures set forth in chapter 5, article B, “Specific Provisions”,
of this title.21
Based on these sections of the Development Code, a C.U.P. is the only path by which a nonconforming use may
be expanded and extended. Modifying the Development Agreement, by itself, is insufficient. A development
agreement is simply a contract between a land developer and a local government in which the developer makes
various commitments affecting a proposed development.22 Just as with any other type of agreement, a
development agreement can bind the parties (in this case, the Applicant and the City), but a development
agreement cannot repeal, replace, abrogate, invalidate, or ignore the law.
The City, in adopting ordinances governing the use and effect of development agreements, arguably could have
authorized the use of development agreements to approve the expansion or extension of existing nonconforming
uses, but it did not. As a result the only way to for the Applicant to legally expand or extend its use of the
Property beyond its scope and use on January 26, 2016, is to obtain a Conditional Use Permit. Approving
the Applicant’s proposed expansion and extension of its nonconforming use by modifying the Development
Agreement violates the Development Code’s unambiguous requirement that such expansions and extensions are
permissible only with a C.U.P. Even if the City approves the Applicant’s request to modify the Development
Agreement, it only changes the terms of that agreement between the parties - modifying the Development
Agreement does not amend the Development Code, which still requires the Applicant to obtain a C.U.P. The
Applicant’s requested modification to add the words “and future” in Section 4.3 of the Development Agreement 23
do not, and cannot, authorize future expansion and extension of the nonconforming use recognized by the City.
The requested expansion and extension to an industrial use can occur only by obtaining a C.U.P.
20 Dev. Code Section 11-1B-1 (emphasis added).
21 Dev. Code Section 11-1B-4.A.2 (emphasis added).
22 Idaho Land Use Handbook, (May 2018 version), p. 339.
23 The Applicant requested the following impermissible and ineffective modification to Section 4.3 of the Development Agreement,
with the underlined portion being the language the Applicant seeks to add:
The following uses on the Property are specifically allowed:
…
4.3 Any existing and future written agreements for the collection, disposal, or maintaining of solid waste
in pursuance of an agreement with the City’s solid waste franchisee may remain until such time that
the Property is developed in the future.
Memorandum in Objection Page 8
Allowing the Applicant to proceed with the expanded and extended use based only upon amendments to the
Development Agreement is outside the City’s authority, as contained in its Development Code, and would
constitute reversible error on appeal.
C. Approving a C.U.P. that Encourages Continuation
of a Nonconforming Use Violates City Policy.
The City’s Development Code contains an entire article exclusively devoted to nonconforming properties, uses,
structures, and signs,24 including the City’s policy on its treatment of nonconforming uses:
… allow any nonconforming property, use, or structure… to continue until they are removed, but
not to encourage their continuation.25
This policy seems to contradict the authority granted in the Development Code to pursue an expansion or
extension of a nonconforming use only by obtaining a C.U.P.
Courts often are called upon to interpret seemingly contradictory statutes and ordinances. To do so they employ
established rules of statutory interpretation. The primary rule of statutory interpretation is that a statute or
ordinance must be considered in its entirety, and great effort should be made to give effect to every word of the
statute or ordinance.26 In other words, seemingly contradictory provisions must be harmonized, with effect given
to both of the provisions.
There is only one way that these two provisions of the Development Code can be harmonized: Although the sole
path for the Applicant to legally expand or enlarge the nonconforming use requires the Applicant to obtain a
C.U.P., the City should not approve a C.U.P. that would encourage continuation of the nonconforming use.
In this case, if the Applicant is allowed to expand and extend its nonconforming use on the Property, the expanded
and extended nonconforming use will continue for the foreseeable future. The Applicant almost certainly will
spend money to build new facilities on the Property, buy new equipment (more trucks, more grinders, and more
composting pits), hire more employees, and generally enlarge its operation. Applicant’s infrastructure and
equipment expenditures necessarily will make the Applicant much less likely to relocate its operation to an area
in which its industrial use is legally allowed and is compatible with the surrounding property. The City can address
the problems caused by this incompatible use now, and the Applicant can relocate its operation to an industrially-
zoned area. Alternatively, if the expanded and extended use is approved, the City will be inundated with
complaints from nearby residents about the noise, odor, traffic, nuisance, and other problems and concerns about
24 See Development Code, Section Title 11, Chapter 1, Article B.
25 Dev. Code Section 11-1B-1 (in pertinent part).
26 50 Am.Jur. 367, Statutes, Section 363, quoted in Sampson v. Layton, 86 Idaho 453, 387 P.2d 883 (1963); see also Bastian v. City of
Twin Falls, 104 Idaho 307, 310, 658 P.2d 978, 981 (Ct.App.1983), petition for review denied ("The particular words of a statute should
be read in context; and the statute as a whole should be construed, if possible, to give meaning to all its parts in light of the legislative
intent."); Ida-therm, LLC v. Bedrock Geothermal, LLC, 154 Idaho 6, 293 630 (2012) (“In construing the words of a statute or
constitutional provision to discern its purpose, the provisions should be read together; an interpretation which would render terms
surplusage should be avoided, and every word should be given some significance, leaving no part useless or devoid of meaning.”);
Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988), citing People v. Owyhee Min. Co., 1 Idaho 409 (“The universal rule of
statutory construction is that all parts of an act must be construed together.”).
Memorandum in Objection Page 9
the expanded and extended use on the Property for several years to come, all because the proposed expanded and
extended use is incompatible with the character of the surrounding area and is prohibited in the R-4 zone.
If the City ignores its established policy that prohibits it from encouraging nonconforming uses to continue,
approval of the Application will be reversed on appeal and remanded back to the City for action in compliance
with its policy.
D. Several Mandatory Conditions Were Omitted
from the Development Agreement and from
the Modifications Proposed by the Applicant
The modifications proposed by the Applicant to the Development Agreement do not include several conditions
that are required by the City’s Development Code for light industrial and recycling/composting uses. The required
conditions include:
▪ Screen the expanded and extended nonconforming use on the Property from all streets and public rights-
of-way using a wall of sufficient height to block the view of the Applicant’s expanded and extended
nonconforming use from the street or public right-of-way – a landscaped berm, sixteen feet (16’) in height,
plus a solid (concrete, brick, or other masonry) wall, ten feet (10’) in height, with vegetative screening on
the exterior meets the requirements contained in the Development Code, provided that the height of ;27
▪ Maintain all grounds and facilities in an orderly manner, to keep them from becoming a public nuisance;28
▪ Locate all mechanical equipment and operations, power-driven processing equipment and operations,
shipping and delivery areas, and other outdoor activity areas on the Property at least three hundred feet
(300') from abutting residential districts;29
▪ Surface all driveways into and through the site, and any open area, with a dustless material (e.g., asphalt,
concrete, pavers, or bricks);30
▪ Store no unsorted material outside;31
▪ Prior to the City executing a modified Development Agreement, identify how the proposed enlargement
and extension of the nonconforming use will address the impacts of noise and other emissions on adjacent
residential districts;32
▪ Obtain a written statement from all federal, state, and local entities with jurisdiction, including (but not
limited to) the United States Environmental Protection Agency, the United States Department of
Agriculture, the Central District Health Department, the Ada County Air Quality Board, the Idaho
Department of Environmental Quality, and the Idaho Department of Water Resources, that the Property,
27 See Dev. Code Title 11, Chapter 4, Section 3, Subsection 32.A.
28 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 32.B.
29 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 32.C.
30 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 32.D.
31 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 32.E.
32 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 25.B.
Memorandum in Objection Page 10
the proposed expanded and enlarged nonconforming use, and the site, facilities, structures, and equipment
that will be involved in the proposed expanded and enlarged nonconforming use, all meet every applicable
standard governing such use, site, facility, structure, and equipment.33
▪ The following adverse effects of the proposed enlargement and extension of the nonconforming use shall
be mitigated through setbacks, buffers, sound attenuation, and hours of operation:34
- Noise,35
- Odors,36
- Vibrations,37
- Blowing debris and other material,38 and
- Any other emission or radiation that endangers human health, results in damages to vegetation or
property, or exceeds health and safety standards.39
Thus far, these conditions have been ignored by the City, despite there being no authority in LLUPA or in the
Development Code for the City and the Applicant to avoid including these additional conditions – they all are
expressly required by the Development Code for the Applicant’s proposed expanded and extended industrial use.
Failure to include all these provisions in modifications to the Development Agreement as conditions to the
Applicant’s use of the Property would constitute reversible error.
With regard to those of the above conditions that require mitigation of adverse effects but do not identify the
method of mitigation to be used, the following express conditions are strongly encouraged:
▪ Setbacks of three hundred feet (300’) or more from property lines;40
▪ Along all boundaries of the Property that abut residentially-zoned property, screen the expanded and
extended nonconforming use on the Property for purposes of sight and sound mitigation – as with the sight
and sound screen required along all public rights of way, which is discussed above, a landscaped berm,
33 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 32.D. (Note: These letters were required to have been included with the
Application, pursuant to this code section, but they were not. The omission of these letters, by itself, is grounds to deny the Application.
If the City approves the incomplete application, the City’s action would constitute reversible error on appeal.)
34 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 25.B.
35 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 25.B.1. The excessive noise caused by the Applicant’s current operation
under its existing nonconforming use is extremely detrimental to the neighbors’ peaceful enjoyment of their respective properties. The
noise emanating from the Property only will get worse if the City violates its policy and the requirements of the Development Code by
approving the Development Agreement modifications requested by the Applicant.
36 See Id.
37 See Id. Vibrations are another key concern of neighbors of the Property, whose homes vibrate and pictures on walls rattle, all from
the Applicant’s current operation under its existing nonconforming use. As with the sound emanating from the Property, the vibrations
only will get worse if the City violates its policy and the requirements of the Development Code by approving the Development
Agreement modifications requested by the Applicant.
38 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 32.C.
39 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 25.B.3.
40 See Dev. Code Title 11, Chapter 11, Section 3, Subsections 25.A and 32.C.
Memorandum in Objection Page 11
sixteen feet (16’) in height, plus a solid (concrete, brick, or other masonry) wall, ten feet (10’) in height,
with vegetative screening on the exterior should be sufficient for this purpose;
▪ With the help of an acoustical engineer that is capable of conducting sound and vibration tests, set up and
use active sound buffers and sound attenuation to limit vibration caused by sound waves emanating from
the Property and to substantially prevent all such vibration on adjacent and nearby properties;41
▪ Limit hours of operation to 8:00 a.m. to 5:00 p.m., Monday through Friday;42
▪ Require the Applicant to add sidewalk with street lights along the edges of its Property that abut public
rights-of-way;43
▪ Require the Applicant to add bicycle lanes to the public rights-of-way near the Property and leading to the
Property, in particular along those roadways frequently used by large trucks and tractor-trailers to deliver
material to, and haul material from, the Property;44
▪ Prohibit the use of commercial lighting on the Property;
▪ Require the Applicant to pay for right-of-way improvements and traffic-calming solutions within the
public rights-of-way that will be subject to intensified use by tractor-trailers and other industrial vehicles;
▪ Prohibit the use of so-called “Jake Brakes”45 by tractor-trailers delivering material to the Property or
hauling material to the Property;
▪ Prohibit the storage, recycling, processing, or composting of any food waste on the Property, unless such
recycling, processing, or composting is conducted entirely in a sealed facility that releases zero odor
emissions;
▪ Require the drilling and installation of test wells along the bank of the irrigation canal or lateral located
immediately adjacent to the location of the wood storage pile on the Property, together with regular
mandatory testing of the ground water, the irrigation water, and any run-off from the Property to ensure
that no harmful chemicals or substances are reaching the irrigation water or the ground water or the
aquifer;
41 See Dev. Code Title 11, Chapter 11, Section 3, Subsection 25.B.
42 See Id.
43 The extensive expansion and extension of the Applicant’s use of the Property, as proposed by the Applicant, necessarily will result
in significantly increased tractor-trailer trips to and from the Property. This concerns the Objectors for several reasons, including that
children often walk along the shoulders of these roadways, most of which lack sidewalks. Schoolchildren also wait for school buses on
the shoulders of nearby roadways. To prevent potential tragedy, the Applicant should be required to construct and dedicate sidewalks.
44 The roadways in the area of the Property are used extensively by road cyclists. Any increase in the frequency of large trucks and
tractor-trailers using these roadways will lead to a commensurate increase in the likelihood of collisions involving large trucks,
tractor-trailers, and road cyclists.
45 The term “Jake Brake” properly refers to the Jacobs brand of engine brakes, but it has become the ubiquitous term for all types of
engine brakes or compression release engine brakes in general. The condition imposed on the Applicant and its haulers should be clear
that it prohibits all engine brakes, not just those manufactured by Jacobs.
Memorandum in Objection Page 12
▪ Prohibit the acceptance, storage, processing, recycling, or composting of any of the following on the
Property:
- Any cement, concrete, masonry products, or asphalt, or similar material; and
- Any biosolids; and
- Any toxic substance or other substance that is known to be harmful to human health.
Additionally, to ensure that the expanded and extended use of the Property does not continue in perpetuity, the
City must not agree to the Applicant’s requested modifications to the section of the existing Development
Agreement entitled “Termination of Recycling Operations.”46 Instead, the City must require the Applicant to
agree to the following modifications to that same section of the Development Agreement:
(e) Within thirty (30) days of the latter of: i) the City of Meridian notifying Owner/Developer
that the City of Meridian received notice that any municipality granteding a Certificate of
Occupancy to any residential or commercial development located within 1000 feet of the
location of the grinding machine located on the Property, as approximately depicted on the
attached Exhibit C; or ii) notice of the granting of a Certificate of Occupancy being
delivered to Owner/Developer.47
If the City approves the Applicant’s request to modify the Development Agreement, any such modifications must
include these conditions, each of which is crucial to preserving the private property rights of those people whose
land will be negatively affected by the Applicant’s industrial use of the Property.
E. The Applicant’s current use of the Property
violates the Development Agreement.
Testimony will be presented both in writing and at the July 17, 2018, public hearing to demonstrate that the
Applicant’s current use of the Property violates the restrictions and conditions contained in the 2016 Development
Agreement. The testimony will show that the Applicant’s use of the Property for industrial purposes has been
ramping up significantly since the Development Agreement was executed and recorded in January of 2016. The
testimony also will show that the Applicant’s composting and recycling operation on the Property has gone from
an agricultural use to an intensive industrial use, in violation of both the Development Agreement and the
Development Code. For this reason, and because there has been no accountability for the Applicant’s violation of
the existing Development Agreement, the Objectors do not trust that the Applicant will comply with the
Development Agreement, even if it is modified.
Pursuant to direct authority contained in the Development Code, the City is entitled to deny any development
application based on violations occurring on the subject real property:
The City may withhold any approval and/or permit for any and all proposed activities or uses on
any real property with outstanding violations of this title, except that such approval and/or permit
46 This section of the Development Agreement does not have a clear or correct section number, but it is located on p. 9 of the
Development Agreement, immediately above Section 4.9, and it is incorrectly labeled with “(e).”
47 Deleted text is stricken; new text is underlined.
Memorandum in Objection Page 13
shall not be withheld where such withholding would adversely affect health, safety or the general
public welfare.48
This provides a clear path for denial of the Application. Even if every factual, procedural, and legal element of
the Applicant’s request lined up in favor of the Applicant (which it clearly doesn’t), and even if the Applicant’s
request to enlarge and extend its nonconforming use complied with the City’s Development Code, the safest path
for the City on appeal would be to deny the application on the basis of the violations currently occurring on the
Property.
F. The Proposed Use Threatens the
Public Health, Safety, and Welfare
Testimony will be presented both in writing and at the July 17, 2018, public hearing to demonstrate that the
proposed expanded and extended use of the Property, which would be inconsistent with the R-4 zoning district
and the residential nature of the area and in violation of the Development Code, would threaten the public health,
safety, and welfare.
G. Improper Notice
Testimony will be presented both in writing and at the July 17, 2018, public hearing to demonstrate that the
Development Agreement, the proposed modifications to the Development Agreement, and a number of public
meetings and public hearings were improperly and insufficiently noticed.
H. “L&G Murgoitio, LLC” Does Not Exist
The business entity that entered into the Development Agreement with the City in January of 2016, namely “L&G
Murgoitio, LLC”, does not exist. It was administratively dissolved in in 2010, after being in existence for less
than 1 year.49
I. Comments on the Application Requested
from the Wrong Irrigation District.
The City notified and requested comment from the Nampa Meridian Irrigation District, which does not own or
control any of the irrigation facilities or laterals located on or near the Property. The Nampa Meridian Irrigation
District responded to the City’s request for comment, though. It begins:
Nampa & Meridian Irrigation District (NMID) has no comment on the above referenced
application as it lies outside of our district boundaries.50
The response goes on to provide contact information for the Boise Project Board of Control, the entity that
properly should have been notified and asked for comment.
48 Dev. Code Section 11-1-12., entitled “PENALTIES,” Subsection D.
49 See “Business Entity search,” https://www.accessidaho.org/public/sos/corp/search.html, on the Idaho Secretary of State’s webpage.
A copy of the search result for “L&G Murgoitio, LLP,” which was retrieved at 12:25 a.m. on July 12, 2018, is attached to this
Memorandum as Exhibit A, and is incorporated herein by this reference.
50 Letter dated May 9, 2018, from Greg C. Curtis, Water Superintendent, Nampa & Meridian Irrigation District, to C. Jay Coles, Meridian
City Clerk; a copy of this letter is attached to this Memorandum as Exhibit B, and is incorporated herein by this reference.
Memorandum in Objection Page 14
The objecting parties hereby request that the public hearing be re-noticed (again) to allow the Boise Project Board
of Control to provide its comments on the Application, particularly in light of the fact that both the current and
proposes uses of the Property are immediately adjacent to the irrigation water supply controlled by the Boise
Project Board of Control, raising concerns about leaching contaminants from the current and proposed uses
reaching the irrigation water supply.
V. CONCLUSION
The untimely Application submitted to the City by the Applicant asks the City to significantly modify the terms
of the Development Agreement to allow the Applicant to expand and extend its industrial use of the Property,
which is zoned for residential use and is surrounded by occupied residences. Even if the Application had been
timely submitted to the City, however, amending the Development Agreement would violate City policy and
would be insufficient to allow the Applicant’s intensive industrial use of the Property; instead, Meridian’s
Development Code requires the Applicant to obtain a C.U.P. – there is no other method prescribed in the
Development Code by which a nonconforming use can be extended and expanded.
Requiring the Applicant to obtain a C.U.P. would provide the proper vehicle for the mandatory conditions, which
the Development Code requires for industrial uses in residential zones, to be imposed and enforced.
The Applicant’s existing violation of the Development Agreement presents the City with another clear basis to
deny the Application.
The proposed expanded, extended, intensive, industrial use is incompatible with the residential zoning of the
Property and the rural residential character of the area. If the City approves the Application, the expanded and
extended use would be harmful to the public health, safety, and welfare.
If the City approves any of the requested modifications to the Development Agreement, then the objections
contained in this Memorandum, the written testimony that will be submitted to the City, and the in-person
testimony presented at the July 17, 2018, public hearing will provide several solid bases for the City’s decision
to be reversed on appeal and the Application remanded back to the City for further proceedings in compliance
with LLUPA, the Development Code, and applicable case law.
Respectfully submitted this 13th day of July, 2018.
Joshua J. Leonard
Attorney-at-Law
Memorandum in Objection EXHIBIT A
EXHIBIT A
Copy of Search Result for “L&G Murgoitio, LLP”
Using the Idaho Secretary of State’s
Online Business Entity Search
(red boxes and line added)
Memorandum in Objection EXHIBIT A
EXHIBIT B
Letter dated May 9, 2018, from Greg C. Curtis,
Water Superintendent, Nampa & Meridian Irrigation District,
to C. Jay Coles, Meridian City Clerk
[please see attached]
O:C; (dile-1) 1904
1503 FIRST STREET SOUTH
FAX #208-463-0092
NAMPA, IDAHO 83651-4395
nmid.org
OFFICE: Nampa 208-466-7861
SHOP: Nampa 208-466-0663
RE: H2O18-0042MDA/ Timber Creek Recycling; 769.5 S. Locust Grove Road
Dear C. Jay:
Nampa &. Meridian Irrigation District (NMID) has no comment on the above referenced
application as it lies outside of our district boundaries. Please contact Bob Carter, Boise
Project- Board of Control. at (208) 344-1141 or 2465 Overland Road Room 202 Noise, ID
83705-3173.
All private, laterals and waste ways must be. protected. All municipal surface drainage must be
retained on-site. If any surface drainage leaves the site NMID must review drainage plans.
Developers must comply with Idaho Code 31-3805.
Sincerely,
11
Greg G. Curtis
Water Superintendent
Nampa & Meridian Irrigation District
GGC/ gnf
Cc: Office/ File
B. Carter, Board of Control
APPROXIMATE IRRIGABLE ACRES
RIVER FLOW RIGHTS - 23,000
BOISE PROJECT RIGHTS - 40,000