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Home My WebLink AboutBarbara Miller - Miller Acres1 Chris Johnson From:Mark Perison <mark@markperison.com> Sent:Monday, July 16, 2018 12:09 PM To:City Clerk Cc:Scott Taylor Subject:H-2018-0042 MDS Letter Attachments:Barbara Miller - Miller Acres Comment.pdf Dear City Clerk, Our office represents Barbara J. Miller and Miller Acres, LLC. Please see attached correspondence on their behalf related to the application referenced above. We request that you enter the letter as public testimony related to the application. Thank you. Mark D. Perison -- Mark D. Perison MARK D. PERISON, P.A. Mailing Address: P.O. Box 6575 Boise, ID 83707-6575 Physical Address: 314 S. 9th Street, Suite 300 Boise, ID 83702 Phone: (208) 331-1200 Fax: (208) 343-5838 Email: mark@markperison.com Website: markperison.com M A R K D. P E R I S O N, P.A. ATTORNEY AT LAW P.O. Box 6575 • Boise ID 83707 • 314 S. 9th Street, Ste. 300 • Boise ID 83702 office 208.331.1200 fax 208.343.5838 website www.markperison.com July 16, 2018 VIA EMAIL: cityclerk@meridiancity.org City of Meridian City Council 33 E. Broadway Avenue Meridian, ID 83642 Re: Timber Creek Recycling Application to Amend H-2018-0042 MDS Dear Mayor de Weerd and City Council Members, I’m writing on behalf of Barbara J. Miller, the principals of Miller Acres, LLC, which owns sixty-seven acres of ground located adjacent to the subject parcel currently being used by the Murgoitios and Timber Creek Recycling (t heir parcels are No. S1406212600 and S1406244200). My clients, first and foremost, object to the proposed amended development agreement as simply incompatible with the existing uses of property in the area and the current zoning. As multiple members of the community have already expressed, the existing uses are far in excess of the uses allowed in the original development agreement. Allowing it to expand even further will simply make a bad situation intolerable. The current application proposes further uses in violation of the current zoning designation. My clients are objecting to the same problems raised by many of the neighbors: increased noise, dust, traffic, odor, fire hazards, danger to groundwater, degraded air quality and/or pollution. In addition, however, there are also several significant legal problems with the application and the original development agreement: A. As raised by Mr. Pica in his objection on behalf of Craig and Nicole Brown, the original development agreement may have been entered into in violation of I.C. §67-6511A. This alone would invalidate the development agreement. CITY OF MERIDIAN JULY 16, 2018 PAGE 2 P.O. Box 6575 • Boise ID 83707 • 314 S. 9th Street, Ste. 300 • Boise ID 83702 office 208.331.1200 fax 208.343.5838 website www.markperison.com B. One of the development agreements entered into 2016, that recorded as Instrument No. 2016-007075, was entered into between the City of Meridian and L & G Murgoitio, LLC. However, L & G Murgoitio, LLC was administratively dissolved on June 8, 2010 (See Exhibit A). Under Idaho Code §30-21-602(3) (formerly I.C. §30-1-1421(3)): A domestic filing entity that is dissolved administratively continues its existence as the same type of entity but may not carry on any activities except as necessary to wind up its activities and affairs and liquidate its assets in the manner provided in its organic law or to apply for reinstatement under section 30-21-603. (emphasis added) Hence, L & G Murgoitio, LLC, was not legally authorized to enter into the development agreement as doing so was clearly not a part of the winding up or liquidation of the company. As of this writing, L & G Murgoitio, LLC, is still administratively dissolved. Hence, it is not legally authorized (even if it had done so, see below) to request an expansion of its existing business. This alone is grounds to deny the application even if it is properly construed as being made by L & G Murgoitio, LLC, and to invalidate the prior agreement. C. As noted by the “Parcel Verification” that is included in the application packet, the owner of more than 50% of the subject ground is L & G Murgoitio, LLC. The other parcel is owned by the Murgoitio Revocable Trust. However, the applicant for the subject action is Michael Murgoitio. The application incorrectly lists “Gary Murgoitio” as the record owner of the property. The Affidavit of Legal Interest states that Gary Murgoitio is the record owner of the property, which is incorrect, and then authorizes Michael Murgoitio to act on his behalf. Although it is likely that Gary Murgoitio controls L & G Murgoitio, LLC, and the Murgoitio Revocable Trust, the actual record owner of the property has not made the application or authorized Micheal Murgoitio to do so. The proposed revised agreement lists L & G Murgoitio, LLC, as the party to it, but as noted above, L & G Murgoitio, LLC, as an administratively dissolved entity, is not permitted to engage in business activities until it is reinstated. There is no proposed amended agreement attached to the application between the City and the Murgoitio Revocable Trust. As it currently stands, the application before the City is NOT from the record owner of the property and even if it was, at least one of the record owners is not authorized by law to enter into such an agreement. CITY OF MERIDIAN JULY 16, 2018 PAGE 3 P.O. Box 6575 • Boise ID 83707 • 314 S. 9th Street, Ste. 300 • Boise ID 83702 office 208.331.1200 fax 208.343.5838 website www.markperison.com I see little choice for the City but to follow the law and determine that the existing Development Agreement with L & G Murgoitio, LLC, is invalid and the pending application is so defective that it cannot be granted. Sincerely, Mark D. Perison MDP/ cc: client EXHIBIT A