Z - Request for Reconsideration (Leonard)
Request for Reconsideration - Pg. 1
December 17, 2018
Mayor Tammy de Weerd
Joe Borton, Council President
Luke Cavener, Council Vice President
Anne Little Roberts, Council Member
Ty Palmer, Council Member
Treg Bernt, Council Member
Genesis Milam, Council Member
(c/o: C. Jay Coles, City Clerk; Chris Johnson, Deputy City Clerk)
Sent via email: cjcoles@meridiancity.org; cjohnson@meridiancity.org.
cc: Bill Nary, City Attorney, sent via email: bnary@meridiancity.org
Re: Timber Creek Recycling, Application No. H-2018- 0042; Request for Reconsideration.
Dear Mayor de Weerd, Council President Borton, Council
Vice President Cavener, and Members of the City Council:
As neighbors of the Timber Creek Recycling site (the “subject property”), we hereby respectfully
request reconsideration of the City Council’s December 4, 2018, approval of the applicant’s amended
development agreement. This request for reconsideration is made pursuant to Idaho Code § 67-6535,
the Idaho Local Land Use Planning Act (“LLUPA,” codified as Idaho Code Title 67, Chapter 65), and
Meridian City Code § 1-7-10 (entitled, “Procedure for Request for Reconsideration”). Pursuant to
Idaho Code § 67-6535 and Meridian City Code § 1-7-10.A.2., this request is made in writing, is filed
with the City Clerk, identifies specific deficiencies in the decision for which reconsideration is sought,
and is made within fourteen (14) days of the “final approval” of the above-referenced application.
In addition to being based upon several fatal deficiencies in the Council’s December 4, 2018, approval,
this request is made in the interest of the duty owed by the Council to prudently manage public finances.
If the Council fails to reconsider and reverse its approval of the above-referenced application submitted
by Timber Creek Recycling for failing to apply for and obtain a CUP, as expressly required by
Meridian City’s own Uniform Development Code (“UDC”), public tax dollars will needlessly be spent
by the City to defend the Council’s incorrect and legally unsupported decision. At a minimum, the City
must comply with its UDC and require the applicant, Timber Creek Recycling, to obtain a conditional
use permit (“CUP”), which must include the UDC’s mandatory conditions for operating a heavy
industrial facility within a residentially-zoned district. Based on an exhaustive review of applicable
Idaho case law, we believe that we will prevail on judicial review; furthermore, Idaho case law on the
Request for Reconsideration - Pg. 2
subject of CUPs is extremely well settled, so we believe that Meridian City likely will be ordered to
pay the costs and attorneys’ fees we incur in requiring the City to comply with its own UDC.
In addition to the reasons set forth in this Request for Reconsideration, we ask the City Council to
listen to the recommendations of its staff, who possess land use and zoning expertise. City staff twice
advised the City Council, in writing, to deny the application, one of which came after conditions of
approval were added.1
The City Council’s December 4, 2018, approval of Timber Creek Recycling’s amended development
agreement in application no. H-2018-0042 had the following specific legal deficiencies:
• First, the applicant, Timber Creek Recycling, missed the deadline contained in the City’s UDC for
amending the development agreement.
A development agreement modification may be initiated prior to signature of the
agreement by all parties.2
The UDC’s deadline for amending a development agreement (“…prior to signature of the
agreement by all parties”) is not supplemented or contradicted anywhere else in Meridian’s City
Code. Once the development agreement was signed by all parties, the window for amending it
closed. However, the City’s UDC provides a single, narrow path for the applicant, Timber Creek
Recycling, to expand and extend its heavy industrial use on the subject property: Request and
obtain a CUP from the City. (See “Second,” below.) In this case, the City’s failure to enforce the
legal deadline for development agreement amendments violates the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution and the City’s own UDC.
• Second, the City’s failure to require the applicant to request and obtain a CUP is the primary basis
upon which this application will be reversed on judicial review by the district court and remanded
back to the City. The City’s UDC simply cannot be read to authorize the expansion or extension
of a non-conforming use simply and singularly by amending a development agreement. The City’s
UDC defines the applicant’s proposed use as “industrial.”3 The Planning Director categorized the
proposed use as “heavy industrial.”4 Industrial uses are prohibited in the R-4 district, which is
entitled “Medium Density Residential District.” To be clear, “prohibited” does not mean “allowed
with a CUP;” rather, “prohibited” means that the applicable Table of Allowed Uses5 contained
within the City’s UDC prohibits the applicant’s heavy industrial use from existing on the subject
property, no matter what conditions are imposed to mitigate its impacts.6 However, the 2016
1 See Staff Report from Sonya Allen, Associate City Planner, dated July 17, 2018; see also Memorandum to Mayor and
City Council from Planning Supervisor Bill Parsons, dated September 11, 2018.
2 UDC § 11-5B-3.F.3. (emphasis added).
3 See definition of “RECYCLING CENTER” in UDC § 11-1A-1.
4 See Staff Report dated July 17, 2018, Section V.C., on p. 2.
5 See UDC § 11-2A-2, TABLE 11-2A-2, entitled, “ALLOWED USES IN THE RESIDENTIAL DISTRICTS,” which
omits “Recycling Centers” entirely, even with a CUP.
6 The Idaho Supreme Court, in Gardiner v. Boundary Co. Bd. of Commr’s, 148 Idaho 764, 229 P.3d 369 (2010), overruled
on other grounds, stated that any use not expressly authorized or designated, either as a matter of right or upon obtaining a
CUP, cannot be pursued there.
Request for Reconsideration - Pg. 3
development agreement expressly allowed the applicant’s current use to continue, but only to the
extent that it existed on the property as of the date of annexation. In other words, the applicant’s
composting facility lawfully exists on the property as a nonconforming use, but only if the applicant
does not expand or extend its nonconforming use beyond the scope and intensity in which it existed
in January of 2016. As neighbors of the Timber Creek Recycling facility, we told you in writing
and in our public testimony that the scope and intensity of the heavy industrial use on the subject
property has expanded significantly since January of 2016. We presented aerial photographs, both
from Google Maps and from Ada County’s Geographic Information System (or GIS) webpage,
that clearly and unquestionably showed this expansion. In response, the applicant, Timber Creek
Recycling, failed to produce any credible evidence that its current operation remains at the same
level it existed in January of 2016. It should have been easy for Timber Creek Recycling to provide
documentary evidence of its operation, to show that it has not unlawfully expanded since January
of 2016, but it failed to do so.
The City’s UDC prescribes a single method to expand or extend a nonconforming use:
…nonconforming properties, uses, structures, or signs shall not expand or extend
the nonconforming aspect of the property, use, structure, or sign unless approved
subject to a conditional use permit as set forth in section 11-5B-6 of this title.7
Modifying a development agreement, without also requiring a CUP, is legally insufficient -
amending the development agreement only changes the terms of that agreement between the City
and the applicant, it does not (and it legally cannot) amend or strike the requirements contained in
the UDC, which still mandate that the applicant must obtain a CUP to expand or extend its
nonconforming use. Additionally, the Council’s failure, in its Findings of Fact, Conclusions of
Law and Decision and Order, to identify why the applicant was not required to obtain a CUP
constitutes its own “grounds for invalidation of an approved permit or site-specific authorization…
on appeal.” Idaho Code § 67-6535(2)(a) (in pertinent part).
Based on the unambiguous language of the City’s own UDC, the applicant must apply for and
obtain a CUP. There is no other means by which the applicant may expand and extend its heavy
industrial use on the subject property. The City’s failure to require the applicant to apply for and
obtain a CUP, or to explain why a CUP is not required in this matter, will constitute reversible
error on judicial review.
The City Attorney’s advice to the Mayor and Council during the September 18, 2018, public
hearing essentially was, “The city always has done it this way [authorizing the expansion and
extension of a nonforming use without requiring a conditional use permit].” A city’s established
practice is not binding, however, particularly if it conflicts with express provisions of the City’s
UDC, as it does in this case. A CUP IS NOT OPTIONAL. The applicant must be required to
obtain a CUP, or on judicial review the district court will reverse the Council’s approval of this
application and remand it back to the City for the Council to comply with the City’s UDC.
7 UDC § 11-1B-1 (emphasis added).
Request for Reconsideration - Pg. 4
• Third, the City Council, by approving the applicant’s development agreement modifications
without also requiring a CUP, directly violated Meridian City’s established policy on
nonconforming uses, which is to…
…allow any nonconforming property, use, or structure… to continue until they are
removed, but not to encourage their continuation.8
When harmonized with the authority granted to the applicant in the UDC to pursue expansion or
extension of a nonconforming use by requesting a CUP, this policy bars the City Council from
approving any expansion or extension of a nonconforming use, even when properly accomplished
with a CUP application, when the result would be to encourage continuation of the nonconforming
use. In the case of Timber Creek Recycling’s application, the City Council’s approval of the
proposed amendments to the development agreement violated the City’s established policy against
encouraging continuation of the nonconforming use.
• Fourth, the standard considered by the City Council in its deliberation of the application was
incorrect. Instead of giving due weight to our existing, vested property rights, the Council
improperly weighed the asserted benefits of the proposed expanded heavy industrial use against
the harm such expansion would cause to us and to our existing, vested private property rights. This
was unlawful and improper and must be corrected. The applicant has zero right to expansion or
extension of its heavy industrial use on the subject property. If the City Council wanted to engage
in a weighing exercise, it should have been “neighbors’ vested private property rights” vs.
“applicant’s complete and utter lack of vested private property rights.”
• Fifth, our attorney was excluded from the meetings that took place between the City Attorney and
the applicant’s attorney, during which the development agreement amendments were negotiated
and drafted. According to the City Attorney, the neighbors’ attorney was excluded because the
development agreement is a contract between the City and the applicant. This argument may be
correct, but it only serves to support the public policy behind the UDC’s requirement that the
application must apply for and obtain a CUP in addition to modifying the development
agreement: TRANSPARENCY. To all of us who were kept on the outside of what should have
been an inclusive public process, our exclusion from negotiations provided evidence that supported
our fear that the City’s approval of Timber Creek Recycling’s application was a foregone
conclusion.
In addition to the specific legal deficiencies attendant with the City Council’s approval of this
application, several procedural errors occurred, any one of which will cause the district court to reverse
the Council’s decision and remand Timber Creek Recycling’s application back to the City for
compliance with Meridian City’s own UDC and our due process rights:
• Council Member Milam’s disclosure, made on the record at the September 18, 2018, Council
Meeting, that she had visited the site of the subject property should have been made prior to
opening the public hearing. We, as members of the public, had a right to testify about Council
8 UDC § 11-1B-1 (in pertinent part) (emphasis added).
Request for Reconsideration - Pg. 5
Member Milam’s prior (potentially ex parte) visit to the site, but we largely were denied that
opportunity because she made her disclosure after many of us already had testified.
• Council Vice President Cavener’s disclosures, also made on the record at the September 18, 2018,
Council Meeting, of his close personal relationship with the applicant and his acceptance of
campaign contributions from the applicant should have been made prior to opening the public
hearing. As with Council Member Milam’s belated disclosures, above, we had a right to testify
about Council Vice President Cavener’s close personal relationship with the applicant and his
acceptance of campaign contributions from the applicant, but the public largely was denied that
opportunity at that public hearing, in violation of our due process rights.
• Over the course of the City’s process on this application, various Council Members missed one or
two meetings (including public hearings) and, upon returning (in a subsequent meeting), they failed
to make a record that they had caught up on the information and testimony they missed. Absent
such a record, Council Members who missed one or more meetings should not have participated
in subsequent meetings or hearings or in the vote to approve the application.
• Although Council Vice President Cavener ultimately abstained from voting on the application, he
provided no basis for his abstention, thereby leaving us to guess what prompted him to abstain.
Depending on the basis for Council Vice President Cavener’s abstention, perhaps he should have
recused himself from the proceedings much earlier, and not participated in questioning those who
provided testimony or in deliberating on motions. With no record of his basis for abstaining, we
are effectively unable to challenge his participation in the process as a seemingly vocal proponent
of the application.
In the interests of complying with Meridian’s own UDC, prudent financial management of public
funds, civic duty, and fundamental fairness, please reconsider the Council’s decision on the above-
referenced application. As noted by Mayor de Weerd after the September public hearing, if the Ada
County Commissioners had voted to approve an application for this type of heavy industrial facility
located just outside Meridian City, there is no way the Meridian City Council would have approved it.
In fact, as the Mayor mentioned, the Meridian City Council likely would have been outraged. For some
reason, however, the Meridian City Council approved this application, even though it was directly
contrary to the recommendations the Council received from City staff and violated the City’s own
UDC.
This request for reconsideration is not intended, nor should it be interpreted, to include a
comprehensive list of objections, basis for reconsideration, or grounds for reversal on judicial review.
Pursuant to Idaho Code § 67-6535(3), we respectfully reserve the right to supplement and augment this
request for reconsideration, and to include additional facts, issues, and arguments in our forthcoming
Petition for Judicial Review (assuming the City fails to reconsider its approval and reject the
application).
Sincerely,
Neighbors of Timber Creek Recycling’s Illegal Heavy Industrial Use
[Please see attached pages for signatures and addresses.]
Request for Reconsideration -Signature Page
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Request for Reconsideration -Signature Page
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Request for Reconsideration
Request for Reconsideration
Request for Reconsideration
Request for Reconsideration - Pg. 1
December 18, 2018
Mayor Tammy de Weerd
Joe Borton, Council President
Luke Cavener, Council Vice President
Anne Little Roberts, Council Member
Ty Palmer, Council Member
Treg Bernt, Council Member
Genesis Milam, Council Member
(c/o: C. Jay Coles, City Clerk; Chris Johnson, Deputy City Clerk)
Sent via email: cjcoles@meridiancity.org; cjohnson@meridiancity.org.
Re: Timber Creek Recycling, Application No. H-2018-0042; Request for Reconsideration.
Dear Mayor de Weerd, Council President Borton, Council
Vice President Cavener, and Members of the City Council:
Please include the attached signature pages with the Request for Reconsideration of Application No.
H-2018-0042, which was filed yesterday (December 17, 2018) by the neighbors. Also, please provide
notice to these neighbors of the City Council Meeting at which the Request for Reconsideration will
be considered.
Please contact me with any questions or concerns.
Sincerely,
Joshua J. Leonard
Attorney at Law
cc: Bill Nary, City Attorney, sent via email: bnary@meridiancity.org
Request for Reconsideration - Pg. 1
December 18, 2018
Mayor Tammy de Weerd
Joe Borton, Council President
Luke Cavener, Council Vice President
Anne Little Roberts, Council Member
Ty Palmer, Council Member
Treg Bernt, Council Member
Genesis Milam, Council Member
(c/o: C. Jay Coles, City Clerk; Chris Johnson, Deputy City Clerk)
Sent via email: cjcoles@meridiancity.org; cjohnson@meridiancity.org.
Re: Timber Creek Recycling, Application No. H-2018-0042; Request for Reconsideration.
Dear Mayor de Weerd, Council President Borton, Council
Vice President Cavener, and Members of the City Council:
Please include the attached signature page with the Request for Reconsideration of Application No. H-
2018-0042, which was filed yesterday (December 17, 2018) by the neighbors. Also, please provide
notice to these neighbors of the City Council Meeting at which the Request for Reconsideration will
be considered.
(Note: This is the second -and final- addendum of signatures to the Request for Reconsideration.)
Please contact me with any questions or concerns.
Sincerely,
Joshua J. Leonard
Attorney at Law
cc: Bill Nary, City Attorney, sent via email: bnary@meridiancity.org
Request for Reconsideration - Signature Page
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Request for Reconsideration p.