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HomeMy WebLinkAboutJoshua Leonard Attorney for Consortium Rebuttal 07-171 Chris Johnson From:joshuajayleonard@gmail.com Sent:Tuesday, July 17, 2018 3:36 PM To:Chris Johnson; Sonya Allen Cc:Bill Nary; Andrea Pogue; jcranney@hawleytroxell.com; 'Derek Pica'; mark@markperison.com Subject:RE: H-2018-0042 (Murgoitio / Timber Creek) - Memorandum of Objection Attachments:2018 07 17 - rebuttal (final).pdf Mr. Johnson and Ms. Allen, Please see the attached document, which is in rebuttal to the letter filed yesterday by Mr. Cranney (the applicant’s attorney) in support of the above-referenced application. Please ensure this document is added to the record and distributed to the Mayor and Council. I respectively reserve my right to supplement and augment the record at or prior to tonight’s public hearing, at which I intend to testify as the legal representative of a consortium of neighbors who oppose this application. Sincerely, - Joshua Leonard Cc: Bill Nary, Andrea Pogue, Derek Pica (counsel for one of the neighbors), Mark D. Perison (counsel for one of the neighbors), and Justin Cranney (Applicant’s counsel) From: joshuajayleonard@gmail.com <joshuajayleonard@gmail.com > Sent: Friday, July 13, 2018 4:21 PM To: cjohnson@meridiancity.org ; sallen@cityofmeridian.org Cc: 'Bill Nary' < bnary@meridiancity.org >; 'Andrea Pogue' < apogue@meridiancity.org >; jcranney@hawleytroxell.com ; 'Joshua Leonard' < joshuajayleonard@gmail.com > Subject: H-2018-0042 (Murgoitio / Timber Creek) - Memorandum of Objection 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 4099 W. Bavaria Street JoshuaJayLeonard@gmail.com Eagle, Idaho 83616 208-891-0874 H-2018 0042 NEIGHBORS’ REBUTTAL TO THE LETTER DATED JULY 16, 2018, WHICH WAS SUBMITTED BY THE APPLICANT’S ATTORNEY, On behalf of the consortium of neighbors that I represent, I hereby submit this letter to rebut the arguments contained in the letter, dated July 16, 2017, submitted by the applicant’s attorney to the City of Meridian in support of the above- referenced application. I. THE PROPOSED EXPANDED AND EXTENDED USE OF THE PROPERTY VIOLATES STATE CODE AND MERIDIAN CITY’S DEVELOPMENT CODE. The expanded and extended uses the applicant proposes for the subject property are not lawful extensions of the nonconforming use that existed on the date of annexation. There is no state law or City ordinance that authorizes the City to violate the Local Land Use Planning Act (“LLUPA”) and its own Development Code by entering into a development agreement that allows the unlawful extension and expansion of pre-existing nonconforming uses. There only are two (2) provisions in the City’s Development Code that discuss the lawful expansion and extension of a nonconforming use. The first provision is: …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.1 and the second provision is: 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.2 Thus, even if the City, in the existing Development Agreement, agreed to allow the expansion or extension of the nonconforming use, the City acted outside its authority in doing so. The City did not subsequently amend its Development Code to conform to the terms to which it agreed in the Development Agreement, and the Development Code still states, in two (2) places, that the only way to expand or enlarge a nonconforming use is by obtaining a 1 Uniform Development Code of the City of Meridian (cited hereinafter as “Dev. Code”) Section 11-1B-1 (emphasis added). 2 Dev. Code Section 11-1B-4.A.2 (emphasis added). NEIGHBORS’ REBUTTAL Page 2 of 5 conditional use permit. The Development Code controls over the Development Agreement, and the applicant must obtain a conditional use permit prior to expanding or extending its nonconforming use. II. A LIMITED COMPOSTING OPERATION ARGUABLY IS PERMITTED BY THE DEVELOPMENT AGREEMENT, BUT THE PROPOSED EXPANDED AND EXTENDED COMPOSTING OPERATION CERTAINLY IS NOT. To the extent the City had any authority to agree, in a development agreement, to recognize an existing nonconforming use, the law is well-settled that a nonconforming use cannot exceed its scope and extent as of the date of annexation, absent clear authority in code. The City had no legal authority to authorize any future expansion or extension of the nonconforming use in the Development Agreement. The line in the Development Agreement cited by the applicant’s attorney, which states that the applicant may “[o]perate Timber Creek Recycling on the Property as is currently conducted or may be conducted in the future,”3 appears to authorize the unlawful expansion and extension of the applicant’s use on the property. However, it does not, and it cannot, provide such authority. That section of the Development Agreement exceeded the City’s lawful authority, which requires the extension and expansion of nonconforming uses to obtain a conditional use permit. Section 4.8 of the Development Agreement is, therefore, null and void.4 In this case, Section 4.8 of the Development Agreement is directly in violation of the City’s established public policy, which states that the City should … allow any nonconforming property, use, or structure… to continue until they are removed, but not to encourage their continuation. Not only does Section 4.8 of the Development Agreement violate established public policy, it violates the express requirement contained in the City’s Development Code requiring all expansions and extensions of nonconforming uses to obtain a conditional use permit. The Development Agreement includes a severability clause,5 so only those provisions that are illegal or against public policy must be excised and deemed null and void, ab initio. III. THE EXISTING DEVELOPMENT AGREEMENT ONLY AUTHORIZED THE APPLICANT TO USE THE PROPERTY TO PERFORM UNDER THEN-EXISTING WRITTEN 3 Development Agreement Section 4.8 (p. 4). 4 See, e.g., 17A C.J.S. Contracts Section 218 (2010) (“The courts will not hesitate to declare void as against public policy contractual provisions which clearly tend to the injury of the public in some way.”); Stearns v. Williams, 72 Idaho 276, 283, 240 P.2d 833, 837 (1952) (“The usual test applied by courts in determining whether a contract offends public policy and is antagonistic to the public interest is whether the contract has a tendency toward such an evil.”); and Bakker v. Thunder Spring-Wareham, L.L.C., 141 Idaho 185, 189, 108 P.3d 332, 336 (2005) (“Public policy may be found and set forth in the statutes, judicial decisions or the constitution.”). 5 See Development Agreement Section 18, entitled “Invalid Provision.” NEIGHBORS’ REBUTTAL Page 3 of 5 AGREEMENTS FOR THE COLLECTION, DISPOSAL, OR MAINTAINING OF SOLID WASTE. The Development Agreement, to the extent that it is not null and void for violating the City’s Development Code and for being contrary to public policy, only authorized the applicant to continue its nonconforming uses on the subject property pursuant to “existing written agreements for the collection, disposal, or maintaining of solid waste…,”6 not pursuant to future written agreements. Adding additional capacity to the subject property to fulfill additional contracts (including contracts with the City of Meridian, as discussed in the letter from the applicant’s attorney) was not intended in the Development Agreement. Further, it would have been outside the City’s authority to include it in the Development Agreement, because the City cannot violate its Development Code by entering into a contract that is directly contrary to the Development Code’s requirement that expansions and extensions of nonconforming uses require conditional use permits. IV. THE APPLICANT MISSED THE DEADLINE TO AMEND THE DEVELOPMENT AGREEMENT In his letter dated July 16, 2018, the applicant’s attorney claimed that it would require a “tortured reading”7 to interpret the Development Code to include a deadline for amending of a development agreement. The applicant’s attorney instead encourages the City to interpret its Development Code in a manner that would lead to an absurd result. To paraphrase the applicant’s attorney, “[a] modification to a development agreement may be initiated prior to signature of the agreement by all parties…,”8 but that deadline doesn’t mean that modifications to a development agreement can’t be initiated after signature of the agreement by all parties. The neighbors respectfully disagree with this interpretation. The Development Code provides no other timeframe for amendment of a development agreement. The deadline, clearly stated in the Development Code, is “prior to signature of the agreement by all parties,”9 and the applicant missed it by more than two (2) years. IV. ALTHOUGH THE APPLICANT’S OPERATION DOES NOT PERFECTLY FIT WITHIN THE DEVELOPMENT CODE’S DEFINITION OF “RECYCLYING OPERATION,” THE COMMUNITY DEVELOPMENT DIRECTOR EXPRESSLY HAS AUTHORITY TO APPLY THE STANDARDS REQUIRED OF A RECYCLING OPERATION TO THE APPLICANT’S OPERATION. The July 16, 2018, letter from the applicant’s attorney argues that the applicant’s current and proposed use of the subject property is not subject to the same standards as a “Recycling Center,” because the applicant’s use does not fit the Development Code’s definition of “Recycling Center.” This interpretation ignores the express authority conferred 6 Development Agreement Section 4.3 (p.4) (emphasis added). 7 Section 4.a. of the letter, dated July 16, 2018, from applicant’s attorney (p. 5). 8 Dev. Code Section 11-5B.3.F.3., which reads, in its entirety: A modification to the development agreement may be initiated prior to signature of the agreement by all parties and/or may be requested to extend the time allowed for the agreement to be signed and returned to the city if filed prior to the end of the six (6) month approval period. 9 Dev. Code Section 11-5B-3.F.3. NEIGHBORS’ REBUTTAL Page 4 of 5 upon the City’s Community Development Director by the Development Code to interpret the inclusion or exclusion of an allowed use based on the criteria contained in Chapter 1 of the City’s Development Code.10 That authority includes: The director may determine that a proposed use not listed in chapter 2, "District Regulations", of this title, is equivalent to a principal permitted or conditional use.11 If the applicant’s proposed expanded and extended use does not fit the definition of “Recycling Center,” and if there is not a different defined use in the Development Code into which the applicant’s use fits, the Director possesses authority to determine the closest fit. If that were not the case, and if the applicant’s use did not fit any defined use, the applicant’s use necessarily would be a prohibited use in all zoning districts, because it is not listed in any of the use tables as a permitted use, an accessory use, or a conditional use.12 V. NUMEROUS OBJECTIONS TO THE APPLICANT’S PROPOSED MODIFICATIONS TO THE DEVELOPMENT AGREEMENT, WHICH WERE RAISED IN THE JULY 13, 2018, MEMORANDUM OF OBJECTION, WERE NOT ADDRESSED IN THE JULY 16, 2018, LETTER SUBMITTED BY THE APPLICANT’S ATTORNEY The following objections by the neighbors, all of which were contained in the July 13, 2018, Memorandum of Objection I filed on behalf of the consortium of neighbors, were not addressed in the July 16, 2018, letter submitted by the applicant’s attorney: A. The Development Agreement that the applicant seeks to modify, which was recorded in the official records of Ada County on January 27, 2016, as instrument number 2016-007075, only includes two (2) of the properties on which the applicant wants to expand and extend its operation. The third property, identified by the Ada County Assessor as parcel number S1405128305, is subject to a different development agreement, which was recorded in the official records of Ada County as 10 Dev. Code Section 11.1.5.E. reads (with emphasis added): Allowed Uses: If a proposed use of property is not specifically listed in chapter 2, "District Regulations", of this title, the use shall be prohibited, except as follows: The director may determine that a proposed use not listed in chapter 2, "District Regulations", of this title, is equivalent to a principal permitted or conditional use. In making the determination, the director shall consider the following: 1. The impacts on public services and activities associated with the proposed use are substantially similar to those of one or more of the uses listed in the applicable base districts as allowed; 2. The proposed use shall not involve a higher level of activity or density than one or more of the uses listed in the applicable base districts as allowed; 3. The proposed use is within the same three (3) digit category of an allowed use listed in the latest edition of the "North American Industrial Classification System (NAIC)", published by the United States department of commerce; 4. The proposed use is consistent with the purpose of the district in which the use is proposed to be located; and 5. The proposed use is in substantial conformance with goals and objectives of the comprehensive plan. 11 Id. 12 See, e.g., Dev. Code Section 11.2A-2.C, which reads: Any use not explicitly listed, or listed as a prohibited use in table 11-2A-2 of this section is prohibited in all residential districts. It shall be unlawful and a violation of this title for any person to conduct in a residential district any prohibited use. NEIGHBORS’ REBUTTAL Page 5 of 5 instrument number 2016-007076. As a result, even if the City opts to violate its Development Code and its established public policy by approving the applicant’s proposed modifications to the Development Agreement recorded as instrument number 2016-007075, the City cannot amend the Development Agreement recorded as instrument number 2016-007076, because it was not noticed or posted.13 B. Approving the applicant’s request to modify the Development Agreement would violate the City’s established policy against encouraging the continuation of nonconforming uses. C. The applicant’s current use of the Property is in violation of the conditions contained in the Development Agreement. D. The expanded and extended nonconforming use requested by the applicant would threaten the public health, safety, and welfare. E. Several of the people entitled to receive notice of public meetings and public hearings required to be held prior to approval of the Development Agreement in 2016 did not receive such notice. F. Several of the people entitled to receive notice of public meetings and public hearings required to be held prior to modification of the Development Agreement did not receive such notice. G. 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. It was administratively dissolved in 2010, and as of 2:30 this afternoon has not been reinstated.14 H. The City requested comment from the wrong irrigation district. I. The applicant’s current use, let alone its proposed expanded and extended use, is entirely inconsistent with the City comprehensive plan, the zoning district, and the character of the area. J. Both the Development Agreement and the applicant’s proposed modifications omit several mandatory conditions that would mitigate the adverse effects that the use (both existing and proposed) inflicts on neighbors’ property. FOR THESE REASONS, THE NEIGHBORS RESPECTFULLY REITERATE THEIR REQUEST THAT THE CITY COMPLY WITH ITS COMPREHENSIVE PLAN, ITS DEVELOPMENT CODE, AND THE GOVERNING STATE STATUTE (LLUPA), BY DENYING THE APPLICATION. 13 In addition to the objection contained in the July 13, 2018, Memorandum of Objection, please see further discussion of this objection in Section C. (on p.2) of the letter submitted to the City on July 16, 2018, by Mark D. Perison, on behalf of Barbara J. Miller of Miller Estates. 14 In addition to the objection contained in the July 13, 2018, Memorandum of Objection, please see further discussion of this objection that is contained in Section B. (on p.2) of the letter submitted to the City on July 16, 2018, by Mark D. Perison, on behalf of Barbara J. Miller of Miller Estates.