HomeMy WebLinkAbout2024-09-12 Anna Canning CENTURION ENGINEERS, INC.
2323 S. Vista Ave Suite 206 1 Boise, ID 83705 1 208.343.3381
Mayor Robert Simison and Esteemed City Council
33 E Broadway Avenue
Meridian, ID 83642
208.888.4433
September 12, 2024
Dear Mayor and City Council,
The purpose of this letter is to oppose the requested development agreement (DA) modification of
Timber Creek Recycling on behalf of a neighboring corporate property owner(file number H-2024-
0032.) The neighbor's opposition is based on three issues: the City's original commitment that the
use would cease once residential development was near; the fact that Timber Creek Recycling has
not been subject to provisions and standards in the Unified Development Code (UDC); and the
failure of Timber Creek Recycling to meet the terms of the existing development agreement.
The City's Original Commitment on Term Limit
When the City of Meridian approved the first DA modification for Timber Creek Recycling,the City
took time to address the neighbors'concerns and craft very specific provisions on how long the non-
conforming, industrial recycling use could continue to function on the property.The existing DA
limits the Timber Creek Recycling use for 10 years or until the 'City has granted a Certificate of
Occupancy to any new residential or commercial development within 7,000 feet."At that ti me,
Timber Creek Recycling must cease operations.The neighbors took some solace knowing that they
had a verbal commitment I agreement I contract from the City that the recycling functions would
stop in the relatively near future.
There were 25 public comment letters on file as of August 16, 2024. (As of September 6, 2024,there
are now 41 public comment letters.) All of the letters expressed strong opposition to the project
citing various nuisances associated with the Timber Creek Recycling operations, including the truck
traffic, odor, dust, and general environmental concerns. (These public comment letters are
consistent with the code enforcement records dating back to 2018 which are discussed later.) Nearly
half of them also mention that they have tolerated the use knowing that the terms of the DA and the
City's commitment to the neighbors would require the recycling activities to cease when more homes
came near.They can see those residential developments around them now and are eager for the
noise, dust, and odor to go away. It is time for Timber Creek Recycling to move its operations to their
Nampa facility near the Amalgamated Sugar factory—a much more suitable neighbor than urban
residences.
You can imagine how the neighbors might now feel that the City is considering a breach of the
commitment I agreement I contract made to them in 2018.
Timber Creek Recycling DA and the Zoning Code
Timber Creek Recycling does not comply with the Unified Development Code in many ways,
including the general purpose of zoning,the standards regarding nonconforming uses, and C���T u�I to
the findings required for conditional use approval.
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CENTURION ENGINEERS, INC.
2323 S. Vista Ave Suite 206 1 Boise, ID 83705 1 208.343.3381
Purpose.The purpose of the UDC is to provide appropriate standards to locate uses and structures to
protect property rights and enhance property values (paraphrasing and summarizing UDC 11-1-2).
Citizens often testify that development of neighboring properties will ruin their property values.
However, studies over the years show that this not true—except when it comes to noxious industrial
uses nearby—especially those that pose a public nuisance.The entire premise of zoning in the
United States is based on separating noxious industrial uses from single family residential homes.
That is why a recycling center is not an allowed use within any residential (or commercial) zoning
district. It is only allowed in industrial districts.
As a side note, It is concerning that Title 4 of Meridian City Code (Public Health and Safety) exempts
commercial recycling from standards that other waste collection operators must meet. I am not fully
familiar with this portion of City Code, but I can see how this exemption might be confused as
somehow allowing a recycling center that would be prohibited by the UDC.
Non-conforming Use.The UDC requires that a use that does not conform to the current zoning
district, but that was previously an allowed use, is treated as a non-conforming use.The UDC allows
non-conforming uses to continue, but they must seek conditional use approval to expand.
During the previous DA modification,this issue was articulated well by both staff and concerned
neighbors, and ultimately it was a court case that took two and a half years to resolve. As I
understand the judge's ruling, he determined that the City did not have to abide by the UDC because
the DA was a contractual agreement.The judge goes on to say that the petitioners 'have not met
their burden to show that the MDA decision was deficient in one of the manners enumerated in
ldaho Code Section 67 5279(3)."One of those"manners"being that the decision was arbitrary
(based on random choice or personal whim, rather than any reason or system).
I knew that City of Meridian DA modifications were usually based on UDC requirements, so I was
curious if that had changed since the judge's ruling came out. I looked at 27 DA modifications done
from 2020 through 2024. Similar to Timber Creek Recycling,two of the DA modifications were to
allow a use that required conditional use permit approval. In those instances,the City did require
conditional use approval.The other DA modifications were to allow different uses or lot
configurations, but they all referenced complying with the UDC in general or they referenced specific
development standards.
To add to the out-of-character and random nature of the Timber Creek Recycling DA,the City went so
far as to provide an exemption to Meridian City Code 6-3-10 Firearms; Dischargeable Instruments,
until such time that the Property is developed in the future. (DA provision 4.5)
It appears that the City's decision to not require a conditional use approval for the expansion of the
non-conforming recycling use was arbitrary and not based on the City's usual decision-making
process. Now that the judge has provided insight and guidance on the first modification,for the City
to consider a second modification to by-pass the UDC would seem to be obviously arbitrary and
capricious.
G"tATU Rto
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CENTURION ENGINEERS, INC.
2323 S. Vista Ave Suite 206 1 Boise, ID 83705 1 208.343.3381
Conditional Use Required Findings. Had a conditional use permit been required with the previous DA
modification or this second modification, I would think it would be difficult for the applicant to
demonstrate that they meet many of the required findings such as: (UDCfindingsin italics)
• That the proposed use will be harmonious with the Meridian Comprehensive Plan and in accord
with the requirements of this title.
The industrial use is in a residential area is neither harmonious with the comprehensive plan
nor the UDC.
• That the design, construction, operation and maintenance will be compatible with other uses in
the general neighborhood and with the existing or intended character of the general vicinity and
that such use will not adversely change the essential character of the some area.
The many public comment letters demonstrate that the operation of the use is not compatible
with the general vicinity.
• That the proposed use, ifit complies with all conditions of the approval imposed, will not
adversely affect other property in the vicinity.
Again,the many public comment letters demonstrate that the operation of the use does
negatively impact other property in the vicinity.The applicant seeks to expand the recycling
operations to create even greater impacts.
• That the proposed use will not involve activities or processes, materials, equipment and
conditions of operation that will be detrimental to any persons,property or the general welfare
by reason of excessi ve production of traffic, noise, smoke, fumes,glare or odors
The many public comment letters specifically reference traffic and odor.
• That the proposed nonconforming use is developed to a similar orgreater level of conformity
with the development standards as set forth in this title as compared to the level of
development of the surrounding properties.
The staff report notes that urban residential development is now within 1,000 feet of this
property.The level and quality of that development is greater than that of the Timber Creek
Recycling use.
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CENTURION ENGINEERS, INC.
2323 S. Vista Ave Suite 206 1 Boise, ID 83705 1 208.343.3381
failure of Timber Creek Recycling to Meet the Terms of the Existing DA
The Timber Creek Recycling operations have failed to comply with many of the terms of the
development agreement but have been allowed to continue.Since Timber Creek Recycling was
annexed to the City of Meridian,there have been 11 official code enforcements cases that were
investigated by the Police Department but have not resulted in any changes to the recycling
operation. I will go through the applicable DA provisions (in ital/cs)with comments based on the
official enforcement actions of the Meridian Police Department and our client's observations.
4.2. No change in the uses specified in this Agreement shall be allowed without modification of this
Agreement.
On July 25, 2023, a code enforcement incident is filed stating that 'DE0andCentral District Health opened
an investigation to the improper handling of material causing an odor which was effecting neighboring
residence."There are snippets of conversations amongst the city staff, CDH, DEQ, and Mike Murgoitio
throughout July,August and September with the result that the City of Meridian will pay greater attention to
the waste materials being accepted at the facility due to plans by Timber Creek Recycling to bring in products
that are not allowed.
Timber Creek Recycling is currently crushing concrete and asphalt as part of their operations."Crushing"was
specifically removed as an allowed use in the DA as was accepting Demolition Waste (such as asphalt,
concrete,and other building materials).
5. ... The following outlines the primary activities, but not all activities, related to Timber Creek's
operation of proposed operation on the Recycling Property:
5.7 Timber Creek receives or may receive the following materials(collectively'Recycled Materials')
for Recycling Activities...
List includes wood,grass, leaves,sheetrock,food waste, garden waste, and Other Materials. Of note is
that Bio Solids (organic material recycled from sewage) and Demolition Debris (such as concrete and
asphalt) were specifically removed as allowed materials based on the public hearing process.
5.2.2 The recycling Materials, before and after processing,may be screened. Screening of any
Recycling Materials may include the use of conveyors, trommels, hopper boxes, air systems, loaders,
and other equipment necessary to screen the Recycling Materials.
Windrowing and crushing were specifically removed as allowed activities based on the public hearing
process.Timber Creek Recycling currently accepts concrete and asphalt waste and crushes the
material on-site. Both these activities are not allowed by the DA and were specific modification
made during the public hearing process.
5.2.4(...)Compost piles shall be maintained in a manner that does not cause or create a nuisance
condition including, but not limited to odor, other nuisance and/or other conditions relative to
insects or disease that affect neighboring properties, cause harmful vapors or constitute a risk to the
environment or public health and safety as set forth in Meridian City Code 4-7-70. ....
5.2.5...The facility and all associated grounds shall be maintained in an orderly manner to
keep them from becoming a public nuisance as defined in Meridian City Code(MCC)4-2-7. G�c1Tu I�ti
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CENTURION ENGINEERS, INC.
2323 S. Vista Ave Suite 206 1 Boise, ID 83705 1 208.343.3381
The Meridian City Code definition of general nuisance includes"Refuse, vegetative decayorany
decaying substance,garbage or filth ofany kind which is exposed to the elements and which causes
or creates an offensive, unhealthy, or unsanitary condition."There are 11 code enforcement
complaints related to Timber Creek Recycling creating an offensive, unhealthy condition.
• A nuisance complaint was filed on September 5, 2019 regarding Timber Creek Recycling not
controlling dust,storing Republic Services trash bins, and operating on a Sunday. Conversations
continue through October and November.The end result is an email to complainants stating that
the DA is a civil contract and is not a matter of laws or codes and concluding with, "The Meridian
Police Department does not enforce civil agreements"
• A nuisance complaint was filed on February 6, 2022 regarding odor.A code enforcement officer
informed the complainant that "Timber Creek Recycling is considered an Agricultural operation per
their Development Agreement, therefore, under Idaho Code, nuisance ordinances do not apply."N o
action was taken on the complaint.
The enforcement officer was wrong on two counts:the DA held Timber Creek Recycling to public
nuisance standards and no where in the DA does it state that the recycling use is an agricultural use.
There are references to other agricultural activities on adjoining properties owned by Murgoitio, but
the DA does not call Timber Creek Recycling an agricultural activity.The DA specifically states that
after the 10-year period is over,"the Recycling Activity shall be removed and the Recycling Property
reclaimed to its former agricultural use%edition."Code Enforcement should have applied the city's
public nuisance standards.
Idaho Code Section 63-604 defines agricultural property as a property that is five or more acres and
meets one or more of the foI lowing qualifications: '(i)It is used to produce field crops including, but
not limited to grains, feed crops, fruits and vegetables; or(ii)It is used to produce nursery stock as
defined in section 22-2302(77), Idaho Code; or(&)It is used by the owner for the grazing of
livestock to be sold as part of for profit enterprise or is leased by the owner to a bona fide lessee for
grazing purposes,• or(7v)It is in a cropland retirement or rotation program."The Recycli ng Property
fails to meet any of these qualifications.
• A nuisance complaint was filed on June 2, 2020 regarding odor. A code enforcement officer again
told the com p I a i na nt that "The primary use of this property, including the recycling component, is an
agricultural operation. The materials being used are deemed allowable as outlined in Timber Creek's
Development Agreement. Under Idaho Code, nuisance ordinance such as odor do not apply to
agricultural operations that were established outside city limits prior to annexation."Aga i n,th i s
information is wrong. Code Enforcement should have applied the city's public nuisance standards.
• A nuisance complaint was filed on April 11, 2023 regarding odor.The matter was forwarded to the
City Attorney,so there is no record of the end result. However,the complaint file includes a
Frequently Asked Questions (FAQs) sheet regarding Timber Creek Recycling that appears to have
been developed by the City.The FAQs again state that the property is exempt from nuisance
complaints. Regarding dust,the FAQs state that Weitherthe Citynorthe Stateregulate dust
generatedbyan agricultural operation."Code Enforcement should be applying the city's public
nuisance standards as well as the DA provisions regarding dust abatement.
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CENTURION ENGINEERS, INC.
2323 S. Vista Ave Suite 206 1 Boise, ID 83705 1 208.343.3381
• A nuisance complaint is filed on May 2, 2023 regarding odor. From the record, it appears that this is shortly
after Timber Creek Recycling starts to receive cheese curd waste. It is one of many complaints that the City
and Timber Creek Recycling receive from neighbors continuing into June and July. Code enforcement took no
action; they should have applied the city's public nuisance standards.
• On July 25, 2023, a code enforcement incident is filed stating that"DEQ and Central District Health opened
an investigation to the improper handling of material causing an odor which was effecting neighboring
residence."The Central District Health official states that a cheese waste product was not being properly
mixed or covered creating significant odor issues throughout the area creating a public nuisance.The CDH
official goes on to state that 7imber Creek Recycling is not operating inaccordance with the approved
Operations Plan."Code Enforcement issues a Violation Correction Letter, but no action is taken to shut down
the cheese waste product to abate the public nuisance.
5.3.3 Compliance with all federal,state and local entities with jurisdiction, including, but not limited
to Department of Environmental Quality, Department ofAgriculture, Central District Health
Department, U.S. Environmental Protection Agency, U.S. Department ofAgriculture, the Ada County
Air Quality Board, and the Idaho Department of Water Resources. The City may consider a fining by
one of these named agencies of violations of their regulations to be a cause for a violation of this
Agreement. ...
As noted previously, on July 25, 2023, code enforcement files an incident report stating that a
Central District Health official states that a cheese waste product was not being properly mixed or
covered creating significant odor issues throughout the area creating a public nuisance.This
confirms the complaints of the neighbors and violates the terms of the DA.
6.3.3 Recycling Activities on the Property will be limited to the following.•(a)Monday—Friday.•7-00
a.m. to 6:00 p.m. (b)Saturday:8:00 a.m. to 6:00 p.m.
There were no hours of operation listed in the original DA, and this generated several complaints
from the neighbors.The 2018 DA modification specifically added the hours of operation to address
these concerns, and,yet,Timber Creek Recycling continues to have trucks entering and leaving the
site in the evenings and on Sundays.As recently as September 4, 2024,Timber Creek Recycling was
operating at 9:30 p.m. and,according to our client,this is not an uncommon occurrence.This is
supported by code enforcement records which show that shortly after the DA modification was
approved, a nuisance complaint was filed on September 5, 2019 regarding Timber Creek Recycling
operating on a Sunday.
5.5.7 Maintain a 4,000 gallon water tank on the Property to hold water for dust abatement purposes
on the Recycling Property.
From the aerial photo you can see that the water tank on the property is empty.
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CENTURION ENGINEERS, INC.
2323 S. Vista Ave Suite 206 1 Boise, ID 83705 1 208.343.3381
6.5.Z Maintain a sprinkler system on roads and other parts of the Recycling Property as deemed
reasonahly necessary by Timber Creek to minimize dust caused by Recycling Activities.
6.5.3 Maintain water truck, tender or buffalo or other similar equipment for dust abatement. Said
equipment will be utilized to apply water to unpa ved portions of the Recycling Property or the
Recycling Materials to minimize dust caused by the Recycling Activities
6.5.4 Spray hoses will be used as part of the Recycling Activities to reduce dust caused by the
Recycling Activities
While odor is the primary complaint expressed by neighbors, dust is frequently reported to code
enforcement and is mentioned in the public comment letters. Our client states that Timber Creek
Recycling is not using a sprinkler system or water tenders to abate dust. The code enforcement
records do not show that the dust complaints are addressed. When questioned,the Timber Creek
Recycling facility operator states they need to monitor the moisture content of the compost piles
and cannot water them too much. No mention is made of the other dust provisions within the DA
regarding the roads and other activity areas.
Thank you for your time and attention in reading this letter. I hope you will agree that it is not in the
City's best interest to approve this DA modification given that 1) it dishonors your previous
commitment to the neighbors; 2) Timber Creek Recycling should be subject to UDC and specifically
to obtaining a conditional use permit for the expansion of a non-conforming use; and 3) Timber
Creek Recycling has failed to abide by the existing development agreement.
In short, given that Timber Creek Recycling is a documented public nuisance and fails to comply with
the existing DA, it seems inappropriate to be more lenient toward the operation with an indefinite
timeline as proposed in the current DA modification.
Sincerely,
Anna B. Canning, AICP
Planning and Office Manager
Centurion Engineers, Inc.
abcanning@centengr.com
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