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HomeMy WebLinkAboutPatty Hagler1 Chris Johnson From:Sonya Allen Sent:Tuesday, August 28, 2018 9:46 AM To:City Clerk Cc:Patty Hagler; Bill Parsons Subject:RE: Timbercreek complaint Clerk – Please include this email in the public record for the Timbercreek project. From: Patty Hagler [ mailto:pfhagler@gmail.com ] Sent: Tuesday, August 28, 2018 9:35 AM To: Bill Parsons; Sonya Allen Subject: Timbercreek complaint Hi Bill and Sonya, I wanted to follow up on our conversations regarding the process to submit noise/disturbing the peace complaints of Timbercreek's industrial operation. Please include this in the application record. In the City Council meeting, Bill commented that there were no noise complaints on record for Timbercreek. However, after the meeting, Code Enforcement officers told a group that there had been noise complaints but they were unable to do anything because they were outside the hours of the city noise ordinance (11 pm to 6 am). Clearly, the noise ordinance is designed to apply to situations in the urban areas to mitigate activities at night that disturb neighbors, like parties, etc. It wasn't designed to mitigate noise issues from industrial operations like Timbercreek that occur all day long. I was working from home July 25 and the noise from Timbercreek's grinder was extremely loud and disruptive to my work environment. I submitted a complaint so there would be a record since Bill had told the council there were no complaint records. After making numerous calls and leaving voice messages, a Code Enforcement officer did come to the Timbercreek site. He called me and was very understanding of why the operations were disruptive to my property environment. However, he was also frustrated that he couldn't do anything about it because the city noise ordinance only applies to 11 pm - 6 am, and when he drove out to our area his impression was that because it is an agricultural area any type of operation is exempt from any complaints. He had no way to enforce the Development Agreement, even though Timber Creek is clearly violating those terms by the expansion of the operation. Conclusions are • There is no process defined for enforcement of the Development Agreement so no conditions of that agreement are enforced by anyone • Because there is no enforcement, Timber Creek has expanded the operation production volume, and extended beyond agricultural to industrial production with no consequences or city monitoring • Property owners have no way to submit any complaints when their right to enjoy their private property is violated • A Conditional Use Permit should be required for Timbercreek's industrial operation, with specific defined conditions of operation, so Code Enforcement officers would have defined parameters to enforce Please advise how property owners can submit noise complaints that will be addressed by city officials. Thank you, Patty Hagler 2 7200 S. Locust Grove, Meridian 208-407-8715 September 13, 2018 Meridian City Clerk Sent via email: cityclerk@meridiancity.org Re: Opposition to application H-2018-0042; Michael Murgoitio/Timber Creek Recycling Meridian City Council and Staff, I live at 7200 S. Locust Grove, which is across the road from Timber Creek Recycling’s industrial operation and I am opposed to their application to expand. Definition of Agricultural and Industrial Operations as provided by Idaho State Agencies At the July 17 City Council meeting, there were several questions presented by the Mayor and Council Members regarding the definition of Agricultural and Industrial operations. The Mayor stated that the Council didn’t typically deal with Ag operations, and asked if someone could obtain additional information to clarify the definition of Agricultural operations to present to the Council. To fulfill that request, I contacted two regulatory agencies, Idaho Department of Agriculture and Idaho Department of Environmental Quality. Brian Oakey, the Deputy Director of the ID Dept of Ag provided the attached documents to help answer my questions: • Idaho Statutes,Title 22, Agriculture and Horticulture,Chapter 1, Department of Agriculture • District Court case decision Idaho DEQ vs Black Diamond Compost Products He stated that Title 22 gives ID Dept of Ag the authority to regulate agricultural composting operations. However, when an operation obtains a DEQ permit for a compos ting operation, they are no longer defined as an agricultural operation, but instead have become defined as an industrial operation. At that time the ID Dept of Ag no longer regulates the operation and DEQ becomes the regulating agency. He was unable to provide testimony but invited Mayor de Weerd or City Council members to contact him if they have questions. Timber Creek also claims they are an agricultural operation because they are utilizing their products as soil amendments. The DEQ court decision states that the Idaho Legislature specifically exempted from the definitions of “soil amendments” and “plant amendments” what the legislature called “organic waste-derived material” which they defined as including “grass clippings, leaves, weeds, bark, plantings, prunings and other vegetative wastes” citing Idaho Code (I.C. 22-22003(26)). They concluded that grass clippings that Black Diamond composts are not soil amendments or plant amendments under the Soil and Plant Amendment Act. This confirms that Timber Creek’s composting operation of these same materials is not an agricultural operation, and is instead an industrial operation. Kevin Ryan with DEQ confirmed that Timber Creek Recycling has obtained a Tier 1 Permit for compostng and provided a copy of the attached application that was submitted, along with the attached document that defines DEQ industrial permit requirements. This information provided by two state agencies clearly confirms that Timber Creek Recycling is operating as an industrial operation, not an agricultural operation. Development Agreement ONLY allows for agricultural use that existed in 2016 The 2016 Development Agreement that re-zoned the property on which Timber Creek is operating to Meridian City Residential R4 gave Timber Creek Recycling permission to continue the existing agricultural operation until development occurred in the area (section 4.8.2) It stated that no change in the uses shall be allowed and the volume could not increase above 40% above the existing volume (section 4.8.1e). I was living across the road from this operation in 2016, and observed an agricultural operation that was multiple times smaller than the industrial operation that exists there today. I have posed the question to the City to see the operation’s production records to verify the exact percentage volume increase, however I haven’t received a response. From my personal observation, I estimate at least a 500% increase in productionin addition to a conversion from agricultural to industrial. The agreement also states that future development of the property shall comply with the standards of R4 zoning (Section 5.1.2), and the operation will cease when a certificate of occupancy for residential or commercial development occurs within 1000 feet of the operation grinder. There is development already occurring within 1000 feet from Timber Creek’s operation. However, the DA only recognizes development by the two property owners that annexed to Meridian City R4 Zoning. This completely discriminates against all other property owners in the area and violates their right to develop their property. As development occurs, the detrimental environment effects will be magnified to many other property owners that will submit claims of noise, odor and dust pollution to the city and DEQ. This will certainly strain and overload city code enforcement resources. Timber Creek has blatantly violated the original DA which allowed the 2016 existing agricultural operation. The DA language allowed an agricultural use that was compatible with surrounding properties zoned rural residential. Despite the terms, Timber Creek has grown significantly larger than allowed in the DA, and transformed to an industrial operation, adding a composting operation with a DEQ Permit, and marketing industrial products to home improvement outlets. What is the process for the City of Meridian to enforce the terms of the Development Agreement, and what specific actions have been taken to mitigate the violations by Timber Creek? City zoning compliance and enforcement The purpose of zoning code and comprehensive planning is to assure there is consistency in property use in specific locations to avoid conflicts of use. Industrial operations are not compatible with residential environments, so they are only allowed in locations that are zoned for industrial operations . If zoning is not upheld and enforced by the City, there are detrimental effects to property values and to property environments. In addition city resources are strained and overwhelmed due to complaints generated from the conflicting environments. Dump is detrimental to environment in surrounding area At the last City Council meeting, we heard a long list of people that were for the amendment, however they signed online or left the meeting without testifying, and their environment is not being detrimentally affected by a trash dumping site like Timber Creek. Timber Creek’s current operation creates noise, odor, and dust pollution along with unsightly large piles of trash that detrimentally affects the environment of the surrounding residential area. These same pollutions will detrimentally affect the environment of the new City Park located a mile away. Conclusions are very clear based on these publicly known facts and will be ruled accordingly by a court if necessary I am requesting that the City of Meridian take two immediate actions: 1. Deny the industrial expansion application submitted by Timber Creek Recycling due to the following: o Zoning violation – industrial operation is not allowed in residential zoning o Operation is detrimental to surrounding environment of residential properties 2. Current DA must be enforced o Applicant has demonstrated complete disregard for the terms of the existing Development Agreement and are operating in violation of that agreement o City Council must define enforcement method process es because City Code Enforcement states they can’t enforce a Development Agreement o Correct the occupancy clause in the existing DA to state that Timber Creek’s operations will cease upon notice to the City of an occupancy certificate being issued for property within 1000 feet of Timber Creek’s property by any municipality Please do not waste City resources with a court case. Sincerely, Patty Hagler 7200 S. Locust Grove Meridian, ID 83642 © Print Friendly Idaho Statutes TITLE 22 AGRICULTURE AND HORTICULTURE CHAPTER 1 DEPARTMENT OF AGRICULTURE 22-110. AUTHORITY AND DUTIES OF DIRECTOR CONCERNING AGRICULTURAL WASTE. (1) In addition to other powers and duties, the director of the state department of agriculture shall have authority to regulate agricultural solid waste, agricultural composting and other similar agricultural activities to safeguard and protect animals, man and the environment. The director may promulgate rules in compliance with chapter 52, title 67, Idaho Code, that may be necessary for the efficient enforcement of the provisions of this section. The director may collaborate with any state agency, federal agency or other governmental entity in the development of rules promulgated pursuant to this section. (2) The director may, by rule, establish a schedule of fees for services performed by the department in the administration of this section and rules promulgated pursuant thereto. Receipts of these fees shall be deposited in the agricultural inspection fund pursuant to section 22-104, Idaho Code, and shall be used, subject to annual appropriation of the legislature, to pay the cost of administering the provisions of this section and rules promulgated pursuant thereto. (3) Any person violating the provisions of this section or rules promulgated pursuant thereto may be assessed a civil penalty by the department or its duly authorized agent of not more than three thousand dollars ($3,000) for each offense and shall be liable for reasonable attorney's fees. Assessment of a civil penalty may be made in conjunction with any other department administrative action. No civil penalty may be assessed unless the person charged has been given notice and opportunity for a hearing pursuant to the Idaho administrative procedure act, chapter 52, title 67, Idaho Code. If the department is unable to collect such civil penalty or if any person fails to pay all or a set portion of the civil penalty as determined by the department, it may recover such amount by action in the appropriate district court. Any person against whom the department has assessed a civil penalty under this section may, within twenty-eight (28) days of the final agency action making the assessment, seek judicial review of the assessment in accordance with the provisions of chapter 52, title 67, Idaho Code. Moneys collected for violations of this section or rules promulgated thereunder shall be deposited in the state treasury and credited to the agricultural inspection fund. When the director identifies items of noncompliance with the rules promulgated pursuant to this section, appropriate corrective actions will be identified. The director may develop a formal compliance schedule as appropriate to correct deficiencies. The director may, through the formal compliance schedule, allow all or part of the value of assessed civil penalties to be applied toward correction of deficiencies. History: [22-110, added 1996, ch. 417, sec. 1, p. 1315.1 How current is this law? Search the Idaho Statutes and Constitution &qnM:] 0901'.16 PM FIIED By: Deputy Clerk FOUrth tlieial Oiz[nR, Ftla COVnly CH0.15TOPHER D. RICH, Clerk IN THE DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF ADA IDAHO DEPARTMENT OF ENVIRONMENTAL QUALITY, Plaintiff, VS. DAVID R. GIBSON, d/b/a BLACK DIAMOND COMPOST PRODUCTS, and VHS PROPERTIES, LLC, Defendants Case No. CV -OC -2015-3540 SUPPLEMENTAL MEMORANDUM DECISION RECONSIDERING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND ORDER PARTIALLY GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff, the Idaho Department of Environmental Quality ("DEQ"), brought this action under the Idaho Environmental Protection and Health Act ("EPHA") seeking to compel defendant David Gibson's compliance with the provisions of EPHA relating to a composting facility DEQ alleges Mr. Gibson operates on land owned by defendant VHS Properties, LLC ("VHS"). Defendants answered and raised various affirmative defenses in their pleading. Plaintiff moved for summaryjudgment and the Court denied that motion. In denying plaintiffs motion, because it found issues of fact precluded granting DEQ judgment on its complaint, the Court failed to address the affirmative defenses raised by the defendants in their answer. In failing to do so, this Court erred. In essence, the Court only decided a portion of the plaintiff's motion. Rule 56, I.R.C.P, permits a party to seek the summary entry of judgment as to any claim or defense or part of a claim or part of a defense. In its motion seeking summary judgment as to SUPPLEMENTAL MEMORANDUM DECISION - 1 the claims in its complaint, the plaintiff argued it was entitled to summary judgment on the affirmative defenses and both parties briefed those issues. The Court simply erred by failing to address those affirmative defenses. Pursuant to I.R.C.P. 60(a), the Court now corrects that oversight and/or omission. The Court partially grants the plaintiffs motion for summary judgment. The Court will grant summary judgment in favor of the plaintiff as against defendants' affirmative defense that plaintiff's claim must fail for the reason that defendant Gibson's activities are regulated by the Idaho Department of Agriculture;I the affirmative defense that DEQ's regulations regarding the management of solid waste were promulgated without adhering to the requirements of I.C. § 67-5222; and the affirmative defense that EPHA and/or the Solid Waste Management Rules promulgated by DEQ thereunder violate Article III, Section 17 of the Idaho Constitution. 1. Plaintiff is entitled to summary judgment as against Defendant's affirmative defense that IDAPA 58.01.06.001.03.b.iii exempts Mr. Gibson's activities from the Solid Waste Management Rules. When it adopted the Idaho Environmental Protection and Health Act (EPHA), the Idaho Legislature created the Idaho Department of Environmental Quality and granted it the authority to promulgate such rules as may be necessary to deal with problems related to solid waste disposal. I.C. § 39-105(2). Pursuant to that grant of authority, DEQ promulgated the Solid Waste Management Rules set forth in IDAPA 58.01.06. In their pleadings defendants describe this defense in various ways: as a lack of standing on the part DEQ to bring this action, as a lack of `jurisdiction" of DEQ over the type of activities involved, as a failure by DEQ to allege a claim for relief in the complaint, as an argument that the authority granted to DEQ by the EPHA is somehow preempted by authority granted to the Department of Agriculture in the Right to Farm Act and the Plant and Soil Amendment Act, and w an argument that Mr. Gibson's activities are exempt from DEQ's regulations based on the language of those regulations. In their memorandum in opposition to DEQ's motion for summary judgment, the defendants only made the latter argument —that the activities of Mr. Gibson that DEQ seeks to regulate are exempt from such regulations based on the language of those regulations. SUPPLEMENTAL MEMORANDUM DECISION - 2 In IDAPA 58.01.06.02, DEQ specified that the Solid Waste Management Rules are applicable to all solid waste and solid waste management facilities except, among other things, "[alny agricultural solid waste which is managed and regulated pursuant to rules adopted by the Idaho Department of Agriculture." IDAPA 5 8.01.06.03.b.iii. Defendants admit in their pleading that Mr. Gibson receives grass clippings and leaves and places them into large piles on property owned by VHS. Mr. Gibson admits mixing these materials with water until those materials biodegrade into humus or compost. In its January 9`h Memorandum Decision and Order, the Court articulated why it finds there is an issue of fact regarding whether the grass clippings and leaves constitute "solid waste" under I.C. § 39-103(13). Defendants argue, however, that even if the grass clippings, leaves, and/or compost constitute solid waste, they are all necessarily agricultural solid wastes managed and regulated pursuant to rules adopted by the Idaho Department of Agriculture and, therefore, exempt from the Solid Waste Management Rules. Other than a general reference to the Right to Farm Act and the Plant and Soil Amendment Act, defendants fail to cite this Court to any authority for their argument that composting of grass clippings and leaves is an activity regulated by the Idaho Department of Agriculture. The Court can find no provision in the I.C. §§s 22-4501 —4504 (the "Right to Farm Act"), I.C. §§s 22-2201 — 2226 (The Soil and Plant Amendment Act), or the regulations promulgated by the Idaho Department of Agriculture that support defendants' arguments. The Right to Farm Act restricts the ability of political subdivisions of the state from declaring agricultural operations a nuisance and adopting zoning ordinances that force the closure of any such agricultural operation. Even assuming, without deciding, that ' The Court need not decide if the Department of Environmental Quality would constitute a "political subdivision of the state" for purposes of I.C. §224504 when it promulgated the Solid Waste Management Rules. The Court suspects it would not. See I.C. § 6.902. SUPPLEMENTAL MEMORANDUM DECISION - 3 Mr. Gibson's composting operation is an "agricultural operation" under I.C. § 22-4502(1),3 the Solid Waste Management Rules are not zoning ordinances and DEQ is in no way attempting to declare defendants' activities a nuisance. Nothing in the Right to Farm Act supports defendants' argument that Mr. Gibson's composting operation is exempt from the Solid Waste Management Rules under IDAPA 58.01.06.03.b.iii. Similarly, defendants' general citation to the Soil and Plant Amendment Act is unavailing. The soil and plant amendment act gives the Idaho Department of Agriculture the authority to promulgate rules regarding the use, handling, and storage of soil and plant amendments. I.C. §22-2204. The legislature specifically exempted from the definitions of "soil amendments" and "plant amendments" what the legislature called "organic waste -derived material" See I.C. § 22-2203(30) and (34)(c). The legislature defined "organic waste -derived material" to include "grass clippings, leaves, weeds, bark, plantings, prunings and other vegetative wastes." I.C. § 22-2203(26). Therefore, the grass clippings and leaves Mr. Gibson admits composting are not soil amendments or plant amendments under the Soil and Plant Amendment Act. Nothing in the Soil and Plant Amendment Act supports defendants' arguments that Mr. Gibson's composting activities are exempt from the Solid Waste Management Rules because they are regulated by the Department of Agriculture. Even if the Idaho legislature has granted the Idaho Department of Agriculture the authority to regulate those who compost grass clippings and leaves,4 defendants have failed to cite this Court to any regulation showing the Department of Agriculture has actually exercised that authority. Plaintiff submitted the affidavit of Mr. Oakley averring the Department of ' Defendants have made no cogent argument based on the language of I.0 § 22-4502(1) to suggest this would be the case. A plain reading of that definition suggests otherwise. 'While defendants' failed to cite to this provision, Plaintiff ethically conceded in its briefing that I.C. § 22-110(1) gives the director of the Department of Agriculture the authority to regulate "agricultural composting." The legislature did not define 'agricultural composting.' SUPPLEMENTAL MEMORANDUM DECISION - 4 Agriculture has not adopted regulations governing the composting of grass and leaves. The Court is unable to find any such regulations as well. Defendants have raised the affirmative defense that Mr. Gibson's composting activities are exempt from regulation by DEQ under IDAPA 58.01.06.03.b.iii. Defendants argue Mr. Gibson's composting activities are exempt because the grass clippings and leaves he composts are an agricultural solid waste managed and regulated pursuant to the rules adopted by the Idaho Department of Agriculture. Assuming that the grass clippings and leaves are a `solid waste' as the Legislature has defined that term in I.C. §39-103(13), the Court concludes, as a matter of law, that grass clippings and leaves are not an "agricultural solid waste which is managed and regulated pursuant to rules adopted by the Idaho Department of Agriculture" under IDAPA 58.01.06.03.b.iii. Plaintiff is entitled to partial summary judgment as against this affirmative defense. In arguing this affirmative defense, both in their pleadings and in their briefing, defendants couch this argument in terms of plaintiff's "jurisdiction" to bring this type of suit and the plaintiff s "standing" to bring this type of suit. Defendants also vaguely argue that the provisions of EPHA are somehow preempted by the Right to Farm Act or the Plant and Soil Amendment Act. The term `jurisdiction' is generally used to refer to a court's authority to subject a particular person to its commands or to a court's authority to resolve a particular type of dispute. Defendants have not contended that this Court lacks jurisdiction either over them personally or over this type of controversy. The doctrine of standing is a creation of the courts to recognize the common sense principle that one cannot bring suit against another to complain about or try to prevent activities one simply does not like. If court's permitted such suits, the courts would be unable to function and people would be afraid to do anything for fear of having SUPPLEMENTAL MEMORANDUM DECISION - 5 to defend themselves in court when someone takes a disliking to their actions. To satisfy the doctrine of standing "litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that thejudicial relief requested will prevent or redress the claimed injury." Miles v. Idaho Power Co., 116 Idaho 635, 641, 778 P.2d 757. 763 (1989). However, as to alleged violations of EPHA, the legislature has specifically given DEQ "standing" to enforce its regulations by bringing suit in the district court. I.C. § 39-108(3)(b). Defendants' argument about "standing" is essentially that plaintiff lacks "standing" because grass clippings and leaves are "crop residue" and therefore exempt from the solid waste management rules under IDAPA 58.01.06.03.b.ii — an issue as to which this Court found a material question of fact remains to be resolved at trial — and that grass clippings and leaves are an `agricultural waste regulated by the Department of Agriculture' under IDAPA 58.01.06.03.b.iii —an argument this Court has rejected above. For the reasons discussed above, nothing in the Right to Farm Act or the Plant and Soil Amendment Act prevents DEQ from regulating the composting of grass clippings and leaves, if those materials are waste materials. Plaintiff is entitled to summaryjudgment as against the affirmative defenses raised in the pleading that plaintiff lacks jurisdiction to bring this suit. Plaintiff is entitled to partial summary judgment in its favor as against the affirmative defenses set forth in the pleadings that plaintiff lacks standing or lacks jurisdiction to bring this suit. Plaintiff is entitled to the summary entry of partial judgment in its favor as against the defense that the Right to Farm Act or the Plant and Soil Amendment Act preempts or precluded enforcement of the Solid Waste Management Rules against defendants for composting grass clippings and leaves. The Court grants plaintifrs motion for summaryjudgment as against these affirmative defenses. SUPPLEMENTAL MEMORANDUM DECISION - 6 Plaintiff is entitled to summary iudement in its favor as aeainst the affirmative defense that the complaint fails to state a claim upon which relief may be granted. For reasons similar to those expressed in their argument regarding the exemptions under IDAPA 58.01.06.03.b.ii and iii, defendants raise the affirmative defense that plaintiff has failed to state a claim upon which relief may be granted. For the reasons expressed above, the Court rejects that argument. Plaintiff has clearly alleged that Mr. Gibson is accepting grass clippings and leaves and placing them into large windrows on property owned by VHS. Plaintiff alleges the grass clippings and leaves constitute solid waste [Amend. Compl. 1131 and that defendants have failed to comply with the Solid Waste Management Rules governing the collection, storage, or processing of such waste. For the reasons expressed in its January 9" Memorandum Decision, this Court has concluded there is an issue of fact as to whether the grass clippings and leaves Mr. Gibson admits receiving and composting are "discarded materials." This issue of fact prevents the Court from determining as a matter of law if the grass clippings and leaves are `solid waste.' However, contrary to defendants' arguments, there is nothing about grass clippings and leaves that per se precludes them from being solid waste or necessarily requires that they always be exempted from regulation as `crop residue.' The plaintiff alleges in its amended complaint that the defendants are engage in activities on the land owned by VHS that involve the composting of large volumes of solid waste for the purpose of resale to the public. [Amend. Compl. ¶ 131. The amended complaint states a claim upon which this Court may grant the relief requested. Plaintiff is entitled to the summary entry of partial judgment in its favor as against this affirmative defense. In its January 91h Memorandum Decision and Order, this Court concluded that defendants were not entitled to a dismissal of the complaint under I.R.C.P. 12(b) for failure to state a claim but then erroneously failed to grant plaintiff's motion for summaryjudgment as against this defense. SUPPLEMENTAL MEMORANDUM DECISION - 7 Plaintiff is entitled to summary Judgment in its favor as against the affirmative defense that the Solid Waste Management Rules were promulgated in contravention of I C §167-5222. In their answer to the amended complaint, defendants raise the defense that the regulations adopted by DEQ regarding solid waste management are not valid under Idaho's Administrative Procedures Act. Defendant Gibson asserts the defense that he was not given specific notice of the regulations before they were adopted. [Amend. Compl. 110]. Defendants argue DEQ failed to comply with the provisions of I.C. § 67-5222. Section 5222 of the Idaho Administrative Procedures Act requires that an agency seeking to adopt rules, prior to the adoption of such rules, "afford all interested persons reasonable opportunity to submit data, views, and arguments, orally or in writing. The agency shall receive comments for not less than twenty-one (21) days after the date of publication of the notice of proposed rulemaking in the bulletin." Defendants' argument is that because they did not individually receive notice of DEQ's intent to adopt the Solid Waste Management Rules in the year 2003, and because they are interested parties, the Solid Waste Management Rules are invalid under the Idaho Administrative Procedures Act. Defendants cite to no authority for the proposition that the language of I.C. § 67-5222 requiring an agency to provide interested persons "reasonable opportunity" to submit comments means that the agency must provide every interested person actual and individual notice. Defendants' argument is without merit. Notably, Mr. Gibson in his affidavit never denies he was given a reasonable opportunity to comment prior to adoption of the Solid Waste Management Rules; he merely claims he was never given actual notice. From the affidavits submitted by the plaintiff, the Court concludes there are no genuine issues of material fact as to this affinnative defense. The Court concludes Plaintiff is entitled to partial summaryjudgment in its favor as against this affirmative defense. Plaintiff's motion for SUPPLEMENTAL MEMORANDUM DECISION - 8 summary judgment is granted in part as to the affirmative defense that the solid waste management rules were adopted in contravention to the provisions of I.C. § 67-5222. In their answer to the plaintiff s amended complaint, defendants assert as the defense that "[n]otwithstanding the source of the definition of the phrase `solid waste,' it represents a `technical' term, or technical phrase; that technical terms, according to the Idaho Constitution, are to be avoided in the law, as declared by Article 3, Section 17 of the Idaho Constitution. That Rules and Regulations are to comply with the constitutional provisions, or they may be regarded unconstitutional, have no force or effect, and rendered void." [Ans. to Amend. Compl. pp. 3-41. Plaintiff moved this Court to enter summary judgment in its favor as against this defense. Plaintiff supported its position with argument in its briefing. Defendants failed to address this argument at all in their briefing in opposition to the motion for summary judgment. Defendants fail to make clear if their argument is as to the definition of `solid waste' used by the legislature in I.C. § 39-103(13) or the narrower definition of `solid waste' used by DEQ in IDAPA 58.01.06.005.44 or both. Article 3, Section 17 of the Idaho Constitution provides: "Every act or joint resolution shall be plainly worded, avoiding so far as practicable the use of technical terms." The Idaho courts have had little occasion to interpret this provision of the state constitution. In addressing arguments that a particular statute violates Section 17 of Article 3, the Idaho Supreme Court has focused on whether the language of the statute was "void for indefiniteness, uncertainty, and incompleteness, and that judicial interpretation cannot give to it any force or vitality." Knight v. Trigg, 16 Idaho 256, 267, 100 P. 1060, 1063 (1909). In Ada County v. Wright, the Idaho Supreme Court concluded that a particular statute was "not obnoxious to sec. 17, art. 3, of SUPPLEMENTAL MEMORANDUM DECISION - 9 the constitution" because it was "not impossible to give the provision a workable construction." 60 Idaho 394, 403, 92 P.2d 134, 137 (1939). Defendants do not assert in their pleading that the term `solid waste' is vague or indefinite. Indeed, defendants do not address the definition of the phrase `solid waste' in I.C. § 39-103(19) or IDAPA 58.01.06.005.44 at all. Defendants merely argue that the phrase "solid waste" is a "technical term" and, therefore the legislature is completely barred from using such a term in any way by sec 17, art. 3. Defendants cite to no authority for this interpretation of the language of section 17. In essence, defendants' affirmative defense appears to be that the legislature can never define terms because the act of defining a term or phrase renders it a "technical" one, in violation of Section 17 of Article 3. This Court declines to interpret the language of the constitution in a way that would yield such an absurd result. The Court notes the commandment in Section 17 to avoid technical terms is not absolute; only a command to avoid the use of technical terms when practicable. Here the legislature used the term `solid waste,' arguably a technical term. However, the legislature specifically defined that phrase using plain words. DEQ did so as well in the Solid Waste Management Rules. Defendants do not argue that the definitions of"solid waste" used are unconstitutionally vague or overbroad. They merely complain that the phrase itself is a "technical" one. This Court concludes I.C. § 39-103(13) and IDAPA 58.01.06.005.44 are not obnoxious to sec 17, art. 3, of the constitution. Plaintiff is entitled to the entry, summarily, of partial judgment in its favor as against this affirmative defense. The plaintiffs motion for summaryjudgment is granted as to this affirmative defense. SUPPLEMENTAL MEMORANDUM DECISION - 10 CONCLUSION Plaintiff moved for summaryjudgment in its favor on the claims set forth in its First Amended Complaint and upon the affirmative defenses raised by defendants in their answer. When the Court issued its January 9" Memorandum Decision and Order denying plaintiff's motion, the Court declined to address plaintiffs motion as to all of the affirmative defenses raised by defendants. In failing to do so, this Court erred. Plaintiff was entitled to a ruling on each defense as against which it moved for summaryjudgment. I.R.C.P. 56(a). Therefore, the Court now decides those portions of plaintiff's motion. The Court's January 9m Order denying Plaintiffs motion for summary judgment entirely is hereby vacated. For the reasons set forth in the Court's January 91h Memorandum Decision and for the reasons set forth herein, plaintiffs motion for summaryjudgment is granted in part and denied in part. Plaintiff s motion for summaryjudgment on the claims alleged in the First Amended Complaint is Denied. Plaintiff's motion for summaryjudgment on the affirmative defense that the defendants' activities are exempt from the Solid Waste Management Rules under IDAPA 58.01.06.03.b.ii because the grass clippings and leaves are crop residue is Denied. Plaintiffs motion for summaryjudgment on the affirmative defense that defendants' activities are exempt from the Solid Waste Management Rules under IDAPA 58.01.06.03.b.iii because the grass clippings and leaves constitute an agricultural solid waste managed and regulated by the Idaho Department of Agriculture is Granted. Plaintiff's motion for summary judgment on the affirmative defense that plaintiff lacks standing to bring this suit is Granted. SUPPLEMENTAL MEMORANDUM DECISION - 11 Plaintiffs motion for summary judgment on the affirmative defense that plaintiff is precluded or preempted by the Idaho Right to Farm Act and/or the Soil and Plant Amendment Act from regulating defendants' activities is Granted. Plaintiffs motion for summaryjudgment on the affirmative defense that the First Amended Complaint fails to state a valid claim for relief under I.R.C.P. 12(b) is Granted. Plaintiff's motion for summary judgment on the affirmative defense that the Solid Waste Management Rules were adopted in violation of I.C. § 67-5222 is Granted. Plaintiffs motion for summaryjudgment on the affirmative defense that use of the phrase `solid waste' in EPHA and/or the Solid Waste Management Rules violates Article 3, Section 17 of the Idaho Constitution is Granted. In the first sentence on page 19 of its January 9`h Memorandum Decision, this Court wrote: "The modifier (plant) following the word crop in I.D.A.P.A 58.06.001(03)(b)(iii)." That citation was incorrect. That citation is hereby corrected to read IDAPA 58.06.001.03.b.ii. The Court notes typographical errors in its January 96 Memorandum Decision as well. The Court trusts these are obvious to the reader, even if they were not to the Court, and need not be corrected. The Court apologizes to the parties for its erroneous decision not to address plaintiffs motion in its entirety. IT is so ORDERED. siva: srerzav 12: 49 am .i J4.5to U/^ Jonathan Medema District Judge SUPPLEMENTAL MEMORANDUM DECISION - 12 CERTIFICATE OF MAILING I hereby certify that on February 9th , 2017, I mailed (served) a true and correct copy of the within instrument to: Darrell G. Early IDAHO ATTORNEY GENERAL'S OFFICE 1410 N. Hilton, 2nd Floor Boise, ID 83706 darrell.early@deq.idaho.gov Vernon K. Smith Jr. ATTORNEY AT LAW 1900 W. Main Boise, ID 83702 vvsl900@gmail.com ( ) U.S. Mail, Postage Prepaid ( ) Interdepartmental Mail (x) Electronic Mail ( ) Facsimile ( ) U.S. Mail, Postage Prepaid ( ) Hand Delivered (x) Electronic Mail ( ) Facsimile CHRISTOPHER D. RICH Clerk of the District Court Signed.2 .11.1:11p. By: Dept Court Clerc Otttks DIST C. FOURT/y CG �•. JUDICIAL �i" SUPPLEMENTAL MEMORANDUM DECISION - 13 Affidavit for use of lana Name: Murgoglo limited ParWmsMp L & G Murgoitio, LLC Gary Muni 8 Linda Mori swear or affirm: to be the property owners Of the pamels listed . Parcel S140641770 Parcel S140649900 Parcel xl406928305 I SWEAR OR AFFIRM THAT THE ABOVE AND FOREGOING REPRESENTATIONS ARE TRUE AND CORRECT TO THE BEST OF MV INFORMATION, KNOWLEDGE, AND BELIEF. Data �I,���_/�� SlgnaW� STATE OF LCA^' COUNTY OF Ada, I, Me undersigned Notary Public, do hereby affirm that 3LfEC� ( personally appeared before me on the of .,j/�[0 t01'li signed Mabove Annear as a use and voluntary act and deed. �vnrrU� v>`Jenar�— NotaryPublic TxN1Y =c ,5,-lq Stan O IDAHO Cmnmiseion Expires HIATE Of IDAHO NON-MDMCRSOLID WASTE MANAGEMENT FACILTfV PRE -APPLICATION MEETING DVFOItMAT10N Applicant's Name /'// C /'•^� •' �" Applicanfs Signomre Apphcaeon Dole JL -d4 S 1 o(Q 18 Name ofSiw T„nl,ov ((ll'a.alr sr � S,,innre 1 Lomfion ofsile ?, I'I SI rri7- Locus+ rn w Rd MericltQYI ID 83(P4-% bIP3� Property ovom ofRamd mtrnn l;n l:piiYd "moig('tnPsh� Li- n.WD�0��:0 Address: (05'575 S 1 7ISi- URl W icl' r ID &&o4$ Telephore: low- $$Q- 417 48 (attach wrimn approval from ownermuse sne far smtedpmpose, if ovneru diRerent from applicant) OpemmrofPrapased Fe hty MIkP MVr�01-i10 Address: 2.4n S Hill'S �lac.e- Wridian M OU42- Telephoce: 2081 81x3 - h zl i- Cmnoat Person Re�Nmg TAis AppGcavw 1 Name: MTP Ml5^0.PiN� Aaasess: 2W23 S i-Uis In= MP 'd'p ll 83b42 Telephone: 10$- 863- 521T nsnma Ibis applicatim is fora Prolrosca Tierdesignaaon: �C Tie.l_ Tier lD NEW FACILITY LATERAL EXPANSION of existing facility This applicabm is for what We of facility? Consmrction&Demolition Wane Landfill Transfix Statim htdusbi Lawfiu ✓ Compos[Facility Seplege Disposal Site Wane Tire Colhxtion She Pcoolemn Contaminated Soils Precessing Site �(plasespecify) What is the composition ofdae waste material to be managed, processol or disposed? Material 6.�— • it l_ar �� ♦a.... 7/52018 Whv is the volome/n�ass ofmatenal received per da\? voiinmeNass Unit I certify Ihat the iN'mmstion conmined in Nis applicalion is we and aecnrare w Ne best of my knowledge. JLJ Sigoatme of owner or openwr � Date ricInmta AdaCounty Assessor Lantl RecorMIGIS IDIS Property Mlalls for Parca151406449900 .ww O © p mvune app�^s•s n:ebna^ u this Pa,ei ""o m"anp c I s ^ e Irin nwu+Ire^ fgq pewlr �VLu,^ _ Tan Dumas Ta.es Cxarzaennips ssolh AMA �€ 4hi Ma County AVO tF Vogt 2016 RYIB Poem ch,,e,R(KOLLC 5®6YIIY_®enlIii,me Carlo0w 9yIG WxxQIYg ^w ,1912 Twil,di O1a9 01 0 MwuxTm WSSo fa etG ww roli O on, �l7flECOtJMBhARDMEFJDM,r)ri Sari 2NIE06 Laodtl ry,,Ssf T Tewn nyupryxrna✓as.'lo^. 2xi[os MAda County Assessor Lead RecorGs16i9 I - Mrs Properly Uelails for carrot 51406417700 mm: ® Eric aero. 111111 MIArPrear Assignee:n Se Peel wI�V9g ¢ pmDill V4 on Tea Doll" Taxes Conarea nis Sk h oxo xexIxax.Ixa.�a neancrowrvIS SECT To.n.mdwn4de.w.n: zxreoa Place sell reds Eoner Assessor Variation" star Elmer ser Z,ra R4 F laic propeormy D, No Nil ar� SEG 6 So IE MINNIQ R oxo xexIxax.Ixa.�a neancrowrvIS SECT To.n.mdwn4de.w.n: zxreoa Ada County Assessor Lana iemoded lOAS ®Need Holi,lela tile Appraiser An Pnra Oxi .n... 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See. 2018 A�t NKSCQ o DOWld Foreal NER ER no Miio eae.x EurodommeMpwnninst: zm[os NM S W L F  Cl a s s i f i c a t i o n s 58 . 0 1 . 0 6   BR C On l y  Pr o c e s s i n g  Fa c i l i t i e s Ti e r  I Ti e r  II Tier  III Si t i n g  Ap p l i c a t i o n Op e r a t i n g  Pl a n Cl o s u r e  Pl a n ID A P A  58 . 0 1 . 0 6 . 0 0 9 . 0 1 <3 0 0  cu b i c  ya r d s  an d Do e s  no t  ma n a g e PC S  or  pu m p a b l e wa s t e ID A P A  58 . 0 1 . 0 6 . 0 0 9 . 0 2 . ≤20 0 0  cu b i c  ya r d s  ,l a n d f i l l  (a . ) ≤60 0  cu b i c  ya r d s ,  pr o c e s s i n g  (b . ) ≤20 0  cu b i c  ya r d s ,  PC S ( c . ) ID A P A  58 . 0 1 . 0 6 . 0 0 9 . 0 3 . >2 0 0 0  cu b i c  ya r d s ,  la n d f i l l  (a . ) >6 0 0  cu b i c  ya r d s ,  pr o c e s s i n g  (b . ) >2 0 0  cu b i c  ya r d s ,  PC S  (c . ) Tr a n s f e r  St a t i o n  or  CE S Q G  (d . ) IDAPA  58.01.06.009.04.CESQG  hazardous  waste hi g h  human  pathogenic  potential toxic  leachate  or  gas ri s k  to  human  health/environment Pr e ‐ap p l i c a t i o n   Co n f e r e n c e 30 ‐da y  re v i e w  (I D A P A  58 . 0 1 . 0 6 . 0 3 2 . 0 3 . a ) Pu b l i c  No t i c e  (I D A P A  58 . 0 1 . 0 6 . 0 3 2 . 0 3 . b ) 30 ‐da y  Pu b l i c  Co m m e n t  Pe r i o d  (I D A P A  58 . 0 1 . 0 6 . 0 3 2 . 0 3 . b ) De s i g n  Ap p l i c a t i o n 60 ‐da y  re v i e w  (I D A P A  58 . 0 1 . 0 6 . 0 3 2 . 0 3 . c . i i ) 60 ‐da y  re v i e w  (I D A P A  58 . 0 1 . 0 6 . 0 3 2 . 0 3 . c . i i ) Siting  Application Operating  Plan Closure  PlanPre‐application  Conference 30 ‐day  review  (IDAPA  58.01.06.032.03.a) Pu b l i c  Notice  (IDAPA  58.01.06.032.03.b) 30 ‐da y  Pu b l i c  Comment  Period  (IDAPA  58.01.06.032.03.b)Design  Application 60 ‐da y  review  (IDAPA  58.01.06.032.03.c.ii) 60 ‐da y  review  (IDAPA  58.01.06.032.03.c.ii) Fo r  re q u i r e m e n t s  se e   ID A P A  58 . 0 1 . 0 6 . 0 1 2 For  requirements  see  IDAPA  58.01.06.013 Ap p l i c a t i o n /   No t i f i c a t i o n 30 ‐da y  fo r  Ap p r o v a l / D e n i a l 30 ‐day  for  Approval/Denial No  DE Q / H D   Ap p r o v a l  Re q . Th i s  gu i d a n c e  do e s  no t  ad d r e s s  lo c a l  go v e r n m e n t  or  ot h e r  st a t e  an d / o r  fe d e r a l  ag e n c y  re q u i r e m e n t s .   Pl e a s e  re f e r  to  ID A P A  58 . 0 1 . 0 6  fo r  de t a i l e d  so l i d  wa s t e  re q u i r e m e n t s ,  th i s  do c u m e n t  is  no t  a  su b s t i t u t e .  Gu i d a n c e  do c u m e n t s  may  be  found  at  the  DEQ   we b s i t e . Fo r  re q u i r e m e n t s  se e   ID A P A  58 . 0 1 . 0 6 . 0 1 1 Fo r  re q u i r e m e n t s  se e   ID A P A  58 . 0 1 . 0 6 . 0 1 0 Revised  August  12, 2016 Chris Johnson From: Patty Hagler <pfhagler@gmail.com> Sent: Tuesday, November 20, 2018 2:03 PM To: Sonya Allen; Bill Parsons; City Clerk Cc: Nicole Brown & Lindsey Brown -Heinrich; Josh Leonard Subject: Timber Creek industrial operation application - Operating conditions of City approval Sonia and Bill, My understanding from the last City Council meeting (11/7) was that Timber Creek was going to work with Meridian City Staff to revise language in Staff s Exhibit B to better define Timber Creek's actions needed to comply with the operation conditions recommended by City Staff that are designed to mitigate negative environmental affects of their industrial operation to the surrounding residential properties. The revisions to Exhibit B that are being proposed by Timber Creek are LAUGHABLE!!! Bottom line is they refuse to abide by any operating conditions because they insist on having complete control of the entire residential area, which includes the Meridian City Park, and they want to have the ability to do anything they choose to maximize their income. Is Meridian City Staff recommending these proposed revisions? If so, I am extremely disappointed as Timber Creek's proposal will do NOTHING to mitigate the environmental pollution caused by their industrial operation. The result is residential property owners will completely lose their right to use and enjoyment of their property. In addition, there will be negative environmental effects to the Meridian City Park which is approximately a mile away. Please recommend that City Council DOES NOT APPROVE Timber Creek's proposed revision! ! ! Please include this message in the public record. Thank you, Patty Hagler 7200 S. Locust Grove Meridian, ID 83642 208-407-8715 November 5, 2018 To: Meridian City Council From: Patty Hagler, property owner, 7200 S. Locust Grove, Meridian Sent vial email: cityclerk@meridiancity.org RE: Exhibit B modifications to Development Agreement Amendment of Timber Creek Recycling Industrial Operation (H-2018-0042) Meridian City Council and Staff, I appreciate the proposed modifications to the Timber Creek Recycling Development Agreement Amendment that attempt to alleviate some of the negative impacts, pollution and nuisances to the residential environment surrounding the Timber Creek industrial operation approved by the Meridian City Council. It is CRITICAL that along with adding operating conditions to the Development Agreement, there also needs to be CONFIRMATION AND DEFINITION OF ENFORCEMENT of every condition for this industrial operation by MERIDIAN CITY CODE ENFORCEMENT. Language MUST be added to the Agreement that states that Meridian City Code Enforcement is authorized and responsible to enforce any and all city code or DA conditions applicable to the Timber Creek industrial operation (which is no longer agricultural due to the added industrial operations that were approved by City Council causing it to no longer fall under Dept of Agricultural jurisdiction). There also needs to be a defined action for violation to cease operations, and a defined path of escalation if conditions are not enforced. Code Enforcement Officers have stated multiple times that they have no way to enforce any language or conditions in a DA, and when they respond to complaints by residential citizens, they say there is nothing they can do because Timber Creek is agricultural. If enforcement of a DA can't be defined and conducted by city officers, Timber Creek MUST obtain an enforceable Conditional Use Permit. Below are specific comments to the sections of the proposals in Exhibit B. 1. Termination I am in support of defining the maximum period of allowed industrial operations. However, I believe that 10 years is too long as development will likely occur in the surrounding area in the next 2-5 years, especially with the opening of the new Meridian City Park approximately a mile away. At the September 18 hearing, the statement was made by the Council that the termination of the industrial operation would naturally happen when development moved to the area. Section 6.8.2 of the amended DA states the industrial operations will cease when a Certificate of Occupancy is issued by Meridian City within 1000 feet of the operation. At the September 18 hearing, Council asked Mike Murgoitio if he owned the property within 1000 feet and he said "No". However, the fact is that the Murgoitio family does own the property within this range that is within Meridian City, so the effect is that the Murgoitio family has complete control of when Meridian City development can occur in this South region near the new park. As long as the Murgoitio family is profiting from the industrial operation, they won't pursue residential development and no one else can obtain a Meridian City Certificate of Occupancy within 1000 ft. This is obviously a conflict of interest and infringement of the rights of other property owners. I request that the termination condition be modified to state that operations will cease when notice is made to the City that a certificate of occupancy is issued by ANY municipality/county within 1000 feet of the industrial operation, and industrial operations will be conducted for a maximum of 5 years. This will mitigate increased conflict and deterrence of residential development in the area. In fact there is a new home being built within 500 feet of Timber Creek right now because they began building prior to knowledge of the industrial operation and were devastated to learn the City approved it in the residential zoned area. 2. Mitigation of visual pollution effects of industrial operation to the surrounding residential area. At last hearing, council members stated that the amended expansion would allow for increased regulation of negative environmental effects to the surrounding residential area because the operation would have to obtain DEQ permits rather than be regulated by Dept of Agriculture. However, DEQ does not have any iurisdiction over noise or visual pollution so enforcement of those violations is the complete responsibility of Meridian City. I support the screening requirement to sufficiently block the view of the facility and stored materials to mitigate visual pollution which infringes on surrounding property owners' rights to enjoyment of their property, and significantly decreases property values. Visitors to my house are surprised at the view of large piles of waste and ask me what it is. This is a huge deterrent to potential purchasers of my property. I recommend removing reference to type of trees because in order to achieve blocking the view, there will need to be solid wall of sufficient height. Trees will never adequately block of the view of the dump. The requirement of a mix of landscaping to be installed in front of the solid structure should remain. The City needs to clarify and confirm that Code Enforcement will enforce these conditions to assure the view of facilities and storage materials is in fact blocked. Violations need to cause operations to cease until conditions are in full compliance. 3. Maintenance of composting to not cause nuisance conditions. I am in support of stating in section 5.2.4 that the composting piles must be maintained to not cause a nuisance condition. I am requesting that visual, dust and noise pollution be specifically named as included conditions that must be controlled to not cause a nuisance to surrounding residential properties. 6. Mitigation of noise pollution effects of the industrial operation to the surrounding residential area. In addition to the clause requiring landscaping sufficient to block the view and to mitigate noise, Timber Creek must also comply with City Noise Disturbance Code. Meridian City Code 6-3-6 states Between the hours of 11:00 PM and 6:00 AM, or at any time so as to unreasonably disturb or interfere with the peace, comfort or enjoyment of others, it is unlawful for any person to cause, or for any person in possession of property to allow to originate from such property, sound that is a public disturbance noise. The applicable defined noise disturbance is item 2 Repetitive Motor Vehicle Sounds, defined as frequent, repetitive or continuous sounds in connection with the... operation... of any motor vehicle.... within a residential district, so as to unreasonably disturb or interfere with the peace, comfort and repose of owners or possessors of real property. The City needs to clarify and confirm that Code Enforcement will enforce these conditions at any time that the peace, comfort or enjoyment of others is disturbed by the Timber Creek industrial operation. Violations need to cause operations to cease until conditions are in full compliance. Our experience working with Meridian Code Enforcement is they say they only enforce noise disturbance between 11 pm and 6 am, and that they can't do anything about Timber Creek's excessive noise because it is agricultural. 7. Mitigation of dust pollution I am in support of the revision to Dust Abatement requirements for driving areas in section 6.5. However, as stated above, dust abatement also needs to be included in 5.2.4 to apply to all operations (composting, grinding, etc) to not create a nuisance to the surrounding public. Also, I request you keep the clauses 6.5.2, 6.5.4 and 6.5.5 regarding sprinklers, spray hoses and wood flour not accepted The following additional conditions are also needed to mitigate nuisance and pollution of the residential environment. • Sections 5.4.1 and 6.3.3. Hours of Operation needs to exclude Saturday to mitigate negative pollution to the residential environment on the weekend. • Section 6.4.2. Height of Recycling Materials needs to be at the lesser of 25 feet or the height permitted by the Meridian Fire Department. Code Enforcement also must be authorized to measure and enforce this condition, with defined consequence of cease operations. • Section 6.6.3. Traffic — 56 trucks/day is too excessive for the roads in this residential neighborhood which are routinely used by walkers, joggers, bicyclists, and slow-moving farm equipment The Applicant stated in the neighborhood meetings and council hearings that the truck traffic would be 15 trucks/day. Also the limit has to include agricultural traffic and retail traffic. • Section 6.8.1. Operations allowed to continue upon conveyance of the property to another party needs to state that party are subject to all conditions in the DA. Thank you, Patty Hagler Chris Johnson From: Sonya Allen Sent: Wednesday, November 21, 2018 11:42 AM To: C.Jay Coles; Charlene Way; Chris Johnson Subject: FW: Timber Creek Exhibit B deletion error From: Patty Hagler [mailto:pfhagler gmail.com] Sent: Wednesday, November 21, 2018 11:28 AM To: Treg Bernt; Joe Borton; Anne Little Roberts; Ty Palmer; Genesis Milam; Luke Cavener; mayortammy Cc: Sonya Allen; Bill Parsons Subject: Timber Creek Exhibit B deletion error Hello, I wanted to make a clarification from the hearing on Timber Creek. The City Attorney stated that he deleted item #2 because it is addressing screening of materials which needs to remain in the main agreement. That is true, however, in the revision, all of the language addressing screening/blocking the view of the operation was completely left out (see red language below). He is correct that the prOVISl011 re: material screening doesn't need modified, however, the screening to block the view is critical to mitigate negative impact to the residential environment and is consistent with city code requirements for industrial operations in the City. Please restore this language in your consideration to approve Exhibit B. Original version of Exhibit B with Staff recommendations: 2. Modify provision #5.2.2, Screening (pg. 7), as follows, "The Recycling Materials, before and after processing, may be screened. Screening of any Recycled Materials may including the use of conveyors, trommels, hopper boxes, air systems, loaders and another other equipment necessary to screen the Recycled Materials Property shall be screened sufficient to block the view of the processing facility, including materials stored on the site, from S. Locust Grove Rd. and W. Columbia Rd. prior to commencement of the proposed expanded use; the buffer area shall result in a barrier that allows trees to touch at the time of tree maturity and contain a mix of evergreen and deciduous trees, shrubs, lawn, or other vegetative groundcover;" Revised version of Exhibit B: 2. Modify provision #5.2.2, Screening (pg. 7), as follows, "The Recycling Materials, before and after processing, may be screened. Screening of any Recycled Materials may including the use of conveyors, trommels, hopper boxes, air systems, loaders and another other equipment necessary to screen the Recycled Materials. Thank you, Patty Hagler 208-407-8715 Chris Johnson From: Sent: To: Subject: C.Jay Coles Wednesday, November 21, 2018 12:06 PM Chris Johnson FW: Timber Creek Exhibit B deletion error From: Bill Nary Sent: Wednesday, November 21, 2018 12:03 PM To: Sonya Allen <sallen@meridiancity.org>; Patty Hagler (pfhagler@gmail.com) <pfhagler@gmail.com> Cc: C.Jay Coles <cicoles@meridiancity.org>; Mayor and City Council<MayorandCityCouncil@meridiancity.org> Subject: RE: Timber Creek Exhibit B deletion error The conditions on screening the property are contained in Paragraph 5. From: Sonya Allen Sent: Wednesday, November 21, 2018 11:42 AM To: Patty Hagler (pfhagler gmail.com) Cc: Bill Nary Subject: FW: Timber Creek Exhibit B deletion error Thanks Patty From: Patty Hagler [mailto:pfhagler(a)Qmail.com] Sent: Wednesday, November 21, 2018 11:28 AM To: Treg Bernt; Joe Borton; Anne Little Roberts; Ty Palmer; Genesis Milam; Luke Cavener; mayortammy Cc: Sonya Allen; Bill Parsons Subject: Timber Creek Exhibit B deletion error Hello, I wanted to make a clarification from the hearing on Timber Creek. The City Attorney stated that he deleted item #2 because it is addressing screening of materials which needs to remain in the main agreement. That is true, however, in the revision, all of the language addressing screening/blocking the view of the operation was completely left out (see red language below). He is correct that the prOVISiOn re: material screening doesn't need modified, however, the screening to block the view is critical to mitigate negative impact to the residential environment and is consistent with city code requirements for industrial operations in the City. Please restore this language in your consideration to approve Exhibit B. Original version of Exhibit B with Staff recommendations: 2. Modify provision #5.2.2, Screening (pg. 7), as follows, "The Recycling Materials, before and after processing, may be screened. Screening of any Recycled Materials may including the use of conveyors, trommels, hopper boxes, air systems, loaders and another other equipment necessary to screen the Recycled Materials Property shall be screened sufficient to block the view of the processing facility, including materials stored on the site, from S. Locust Grove Rd. and W. Columbia Rd. prior to commencement of the proposed expanded use; the buffer area shall result in a barrier that allows trees to touch at the time of tree maturity and contain a mix of evergreen and deciduous trees, shrubs, lawn, or other vegetative groundcover;" Revised version of Exhibit B: 2. Modify provision #5.2.2, Screening (pg. 7), as follows, "The Recycling Materials, before and after processing, may be screened. Screening of any Recycled Materials may including the use of conveyors, trommels, hopper boxes, air systems, loaders and another other equipment necessary to screen the Recycled Materials. Thank you, Patty Hagler 208-407-8715 C.Jay Coles From:Treg Bernt Sent:Friday, November 23, 2018 9:54 AM To:C.Jay Coles Subject:Fwd: Re: Fwd: Timbercreek industrial operation Mr. Clerk, Please add the public record. Thanks, brother... My best, -- Treg A. Bernt | City Councilman, Seat 4 City of Meridian 33 E. Broadway Ave., Meridian, Idaho 83642 Cell: (208) 409-7400 | Fax: (208) 898-5501 All e-mail messages sent to or received by City of Meridian e-mail accounts are subject to the Idaho law, in regards to both release and retention, and may be released upon request, unless exempt from disclosure by law. ---------- Forwarded message ---------- From: Treg Bernt <tbernt@meridiancity.org> Date: Nov 23, 2018 9:53 AM Subject: Re: Fwd: Timbercreek industrial operation To: Patty Hagler <pfhagler@gmail.com> Cc: Patty, I appreciate you reaching out with concern. Although I can't comment on this application unless it's on the public record, I can say there are different reasons why I ask questions. In fact, getting to know this application better because I ask questions is very important to the process... My best, -- Treg A. Bernt | City Councilman, Seat 4 City of Meridian 33 E. Broadway Ave., Meridian, Idaho 83642 Cell: (208) 409-7400 | Fax: (208) 898-5501 1 All e-mail messages sent to or received by City of Meridian e-mail accounts are subject to the Idaho law, in regards to both release and retention, and may be released upon request, unless exempt from disclosure by law. On Nov 23, 2018 8:46 AM, Patty Hagler <pfhagler@gmail.com> wrote: Correcting email address ---------- Forwarded message --------- Patty Hagler From: <pfhagler@gmail.com> Date: Tue, Nov 20, 2018, 7:20 PM Subject: Timbercreek industrial operation To: <tbernt@cityofmeridian.org> Mr Bernt, I was very disappointed to hear your question at the hearing tonight of whether bordering properties affected by this industrial operation are in other jurisdictions. In fact, all residential property owners bordering the industrial operation are not in the City of Meridian. The only property owner in the City of Meridian is the Murgoitios. So the rights given to only City of Meridian residents are only available to the Murgoitios. One of the two specific rights are that the operation will cease when a Certificate of Occupancy is issued only by the City of Meridian within 1000 ft. So only the Murgoitios can obtain that COA. All other residents in the area are not able to develop because they are right next to an industrial operation. The other specific right proposed is the equipment must be 300 ft from residential district, but only from City of Meridian. So again it only applies to Murgoitios property. It offers no protection to all the other affected residents. Patty Hagler 208 407 8715 2