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Home My WebLink AboutBryan Farris on Behalf of Settler's IrrigationChris Johnson From: Bryce Farris <bryce@sawtoothlaw.com> Sent: Thursday, May 2, 2019 2:48 PM To: Meridian City Clerk Cc: Greg Curtis; 'Mack Myers (mack@settlersirrigation.org) (mack@settlersirrigation.org)'; Stefanie Keen Subject: Comments to 2019 UDC Text Amendments Attachments: SKM_C45819050214440.pdf City Clerk: Attached please find comments submitted on behalf of Settlers Irrigation District for the hearing/meeting tonight. Please contact me should you have any questions. Thanks, S. Bryce Farris Attorney at Law SAWTOOTH LAW OFFICES, PLLC 1101 W. River St., Ste. 110 P.O. Box 7985 Boise, ID 83707 Tel: (208) 629-7447 Fax: (208) 629-7559 bryce@sawtoothlaw.com SAWTOOTH LAW From: scanner@sawtoothlaw.com[mailto:scanner@sawtoothlaw.com] Sent: Thursday, May 02, 2019 2:45 PM To: Bryce Farris Subject: Message from KM—C458 1 Boise Office Golden Eagle Building 11o1 W. River St., Ste. iio P.O. Box 7985 Boise, Idaho 83707 Tel. (208) 629-7447 Challis Office 1301 E. Main Ave. P.O. Box 36 Challis, Idaho 83226 Tel. (208) 879-4488 Twin Falls Office 236 River Vista Place Suite 301 Twin Falls, Idaho 83301 Tel. (208) 969-9585 Fax for all offices: (208) 629-7559 SAWTOOTH LAW Sent via E-mail City of Meridian cityclerk@meridiancity.org OFFICFS, PLLC May 2, 2019 Re: Proposed 2019 UDC Text Amendments (H-2019-0049). Dear City of Meridian: David P. Claiborne * david@sawtoothlaw.com S. Bryce Farris bryce@sawtoothlaw.com Evan T. Roth evan@sawtoothlaw.com Daniel V. Steenson dan@sawtoothlaw.com Andrew J. Waldera andy@sawtoothlaw.com James R. Bennetts (retired) jim@sawtoothlaw.com Attorneys licensed in Idaho *Also licensed in Washington Please be advised that this law firm represents Settlers Irrigation District (hereinafter "District") and I am writing to you to provide comments concerning the above -referenced amendments. It is my understanding that these amendments will be considered as part of a hearing this evening. It is also my understanding that the District's Manager, Mack Myers, as well as the Superintendent of Nampa & Meridian Irrigation District, Greg Curtis, met with representatives of the City to discuss concerns regarding the amendments. Those concerns have not been addressed and thus I am providing you with these additional comments. Unfortunately, neither myself mor Mr. Myers are able to attend the hearing this evening and thus these comments are submitted on behalf of the District. This law firm also represents Nampa & Meridian Irrigation District, and I have cc'd Greg Curtis, on this letter and it is my understanding that Mr. Curtis intends to attend the hearing and present additional comments on behalf of Nampa & Meridian Irrigation District. The primary concern with the amendments relates to the change to the piping requirements in 11 -3A -6(B)(2) and (3) concerning when piping of irrigation or drainage facilities is allowed. The District appreciates that the City's "decision maker" has discretion as to when to allow piping when a new development is proposed but these amendments imply and suggest that the City must be convinced to allow pipe and/or that the City is the ultimate decision maker as to when irrigation or drainage facilities may be piped. In fact, Idaho Code section 42-1207 specifically requires the written consent of the irrigation entity before an irrigation or drainage facility is piped. Idaho Code sections 42-1102 and 42-1209 also require the consent for the www.sawtoothlaw.com Page 2 SAWTOOTH LAW OFFICES. RLC irrigation entity before any encroachments are placed in the ditch or the easement. Thus, while the City can approve of developments and allow or not allow piping as part of the development proposal, the owner/developer is still required to obtain the written consent of the irrigation or drainage entity pursuant to Idaho law. While the City may have desires for irrigation or drainage facilities to remain open for aesthetic or other reasons, these desires may not fit with the responsibilities and duties of an irrigation/or drainage entity or the purposes of the specific irrigation ditch or drains, and thus put a developer in the middle of the two entities. In other words, the District may desire to have a ditch tiled for operational or other reasons, or the developer will be required to provide a larger access easement, and the developer will invariably inform the District that the City is requiring the ditch to remain open. There should be some input and coordination with the irrigation/drainage entity before the City's "decision maker" requires or approves of a ditch or drain to remain open. Accordingly, the District would request, at a minimum, that the amendments clarify and provide that: "This does not modify or amend any approvals which may be required or necessary from an irrigation or drainage entity as required by Idaho law and coordination with the irrigation or drainage entity is necessary." Furthermore, the latest version of the amendments for 11-3A-6(B)(3)(a) has new language indicating that "and a license agreement is executed with the Irrigation District." The District appreciates that this was an attempt to address some of the concerns raised by Mr. Myers and Mr. Curtis, but it misses the point. First, it is too specific to an "Irrigation District." Idaho Code section 42-1207 which requires the written consent of a ditch owner to tile or pipe the ditch includes irrigation districts, drainage districts, canal companies or lateral associations. Second, and more importantly, this language has been added to the section which provides for a waiver of the requirement of covering or piping a ditch. If the waiver is granted and there is no requirement for piping or covering the ditch then it follows that no license agreement would be required either. I have referenced the "latest version" because it appears these amendments are a work in progress and they contain inconsistencies and ambiguities. Thus, the District would further request that the City table these amendments and allow for additional consultation with District, Nampa & Meridian Irrigation District, and other irrigation entities to address these inconsistencies and other concerns. With regard to the fencing amendments along untiled irrigation facilities, 11 -3A -6(c)(3), the District's concern is again that the fencing requirement may or may not fit with the requirements of the irrigation entity. For instance, the District does not desire wrought iron fencing in the easement where it may be spraying for weed control. The District understands that it cannot dictate what can be built outside of its easement or right-of-way, but as previously mentioned, Idaho Code sections 42-1102 and 42-1209, require its written consent for any encroachments, including fences, within its easement/right-of-way. Thus, this is also a situation where the City may require a wrought iron fence, and as long as it is proposed in the easement, the District may not allow a wrought iron fence and may require a solid fence such as plastic or wood. This again puts the developer in the position of being caught in the middle of two entities, i.e. the City and District, with differing requirements. Again, at a minimum, the District would www.sawtoothlaw.com Page 13 SAWTOOTH LAW OFFICES, RLC request that the amendments further clarify that "This does not modify or amend any approvals which may be required or necessary from an irrigation or drainage entity as required by Idaho law." The District appreciates the opportunity to provide these comments. Please contact myself or the District if further discussion is required or if you should have any questions. Very truly yours, <SBryce Farris cc: Settlers Irrigation District Greg Curtis — Nampa & Meridian Irrigation District www.sawtoothlaw.com