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<br />DRIGGS nn~o 1VIORGAN
<br />• City of E11c Rivet 1'laauaing Commissioxz
<br />1VIaz•ckt 9, 2010
<br />page 3
<br />reaaewal process or (2) a anew 13-aCTe CUI~/License amendment application before City.
<br />Consistent with City's evasive responses to Judge Varco's January 29 questioxzs regarding the
<br />true availability of those alternative approaches, these options will be proven to have been, as
<br />Judge Varco ope~caly suxnaised, a mirsge,
<br />Second, notwithsta~•-dizag its efforts to describe its proposed City Code axpezadments as a
<br />;<nexe "reaffirm[ation]" of its existing City Code recluirezaaemts, these pxoposed ameudnn,ezats, if
<br />adopted, will instead underscore. the obvious - namely, that there is no requirement in flee
<br />existing City Code either (1) fora 200-foot setback for Iandflls or (2) that the State-mandated
<br />200-foot setbaclz be within City's SWF overlay district• .A.s •to the frst point, City staff's Match
<br />2, 20101etter plainly cozteedes "that the 200 foot buffer zone his] xequirecl by State law." Ex. 1 S5
<br />at 1 (emphasis added). Azad, consistent with its February 2, 2010 brief to Judge Varco, City
<br />staff's letter identifies no existing City Code setback requireiJne><at foz• landfills. As to tb.e secozad
<br />pouat, City staff s four proposed arxlen.dz7aezzts to the City Code illustrate what had fio be in the
<br />existing City Code to require the State-mandated 200-foot buffet to be withiza the SWF overlay
<br />distinct. Without these Yunendn~ents, there is, at best for City, ari ambiguous basis fox it to
<br />contend that the buffer vvas, under City Code § 58-91, "aaeeded or useful for the rote sin or
<br />S~1SRo~a1 of waste," (l;xnphasas added). Azad such supposed smbiguitaes in the land use context
<br />axes are to be read in favor of flee land owtaer's proposed use. See ,Dailey v. Gity ol`'.Lor~~ Lalre,
<br />No. C3-998-1663, 1999 WI, 118633, at *4 (IVfioxi.. ,App.lvlar. 9, 1999) (E~. la9) (fzndizzg that the
<br />public policy rule of construction favors interpretation. ~ favor of land owner).
<br />Thixd and finally, City statiffs contention that "Solid Waste Facilities leas o~1wsys beeaa
<br />izzte~~reted to include all components necessfuy for tics operation of a Solid Waste Facility,
<br />includizzg required buffer areas Itnd buffer zozies" (Ex. 155, draft Ord, Rio. 10, Finding 8
<br />(emphasis added)), if adopted, wi11 contradict not only City's prior representatio><xs to Judge
<br />Vareo but also its prior appaoval of landfill "corrzporzents" outside of the SWF overlay district,
<br />On ]December 17, 2009 and agaiza oxt January Q~, 2010, Ciq~ plainly and unmistakably repxeseaated
<br />to Judge Varco that the parties' 2003 Idost Community Agreenaexit's "laxAguage clea>t"Iy refers to
<br />'e~~n~aioz}s . _ , oxi the Landfill .p~~erty,"' not to "eztpansions" onto Tillex's adjacent 108.8-acre
<br />southern devclopmexxt area (SZ}A) property, 1/x/10 City E,RL 1 Proposed Memo, atad Order at
<br />2G-27 (ezaapkaasis added); 12/17/09 City ER.I; ,t a.ral argtunent. And, bocause fibers is no room for
<br />any matexial land.~ll expansion on the existing 137.~4~acze landfill property other Haan. witbi><a. the
<br />200-.foot buf'fbr area at issue, City was necessarily referrizag to expansion withiza dais buffez• area,
<br />UIaless Cit3r is willing to wit;lldraw its prior representatYOns to Judge Varco and instead argue Ilaat
<br />its "coopexatioxz" obligation under the 200 I~ost Community .Agreemezxt is rzaeazaingless, Finding
<br />8 fails. Finding 8 otherwise fails because El2i, already haq approved monitoring wells outside of
<br />tl~e SWF overlay district (Fx. 157), thus proving that City 1~as nAt "always ...interpreted [Solid
<br />Waste facilities] to ixaclude all components for tics operation of a Solid Waste Facility." Rathor,
<br />consistent with its existixg City Code definitions, City kzas rc~,ucta more narrowly defined "solid
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