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03/©9/2©10 16:15 + ]~K1U[a5 MUKUAN rYir~~ 1 rr~U~ e~ibn
<br />BRIGGS nNO MORGAN
<br />City of l;ll~ River Planning Commissioaa
<br />1Vlarch 9, 2010
<br />Page 4
<br />waste facility," includzxzg "saaiitary landf lls," as being lianited to the "disposal" area, e~cluszve of
<br />an}' buffex area. City Code § 58-174(x)(10), and § 58-91 (Ex. I4~6); City Code § 30-1834(c) and
<br />ch. 58, Art. III, Div. 4 (Eris. I5 and 146).
<br />B. ESTA$LZSIE~MJEa1~1~' OF''I']i;IYS OI<' MiLLZQNS OE DULLARS IN LI.A,li1LZ~'X
<br />,Because City has represented to Judge Varco that the parties' 2003 host Cozxuxzuzuity
<br />.A.g;.reement's "]anguage clcax),j' refers to 'extensions .. , ozz ~, e La~idfill propE~-ty,"' City Staf,~s
<br />pxoposcd atzzendments, if adopted, will constitute an equally "clear" bxea.ch of the agreement.
<br />Indeed City's actions will merely add tp its inexeasingly impressive Iist of breaches of its
<br />"cozztzactual" obligations tuidea• the agreeprzents. Most tellingly, 11 days aver receiving EItL's
<br />March; 30, 2009 Applications, City staff puzpoz~ed to unilaterally and without xtotice to anyoxze
<br />(inclu.ding City Councill) xez~rzoved the "ELIC RIVER LANDFILL" label from its 2007 Iand use
<br />cad zoning neaps. Now, eight days affex receiving ERL's February 22, 2010 application, City
<br />staff proposes amendments to the City Code to require the State-mandated 200-foot bu:(~ex to be
<br />within the SWF overlay district. Fay anyone's definition, City's Glaanging of laws to try to thwart
<br />the contractually-anticipated Iandlxll ~pansion violates the letCex and tkte spirit of the agreement.
<br />Certainly the xzegotiators o~Fthe agreement -- i.e., John I~ellas for E1ZI, and Peter Beclc for City
<br />- did not envision, such gaixaesxnanslaip being allowed under the agzeerrzezzt. And, given the
<br />approximately 1.6 million cubic yards of additiozzal waste disposal airspace at issue with just
<br />ERL's February 22, 2010 proposed 1,3~acxe expazasion, the resulting ~recovexable damages from
<br />City's breach is izz the tens of miIlions of dol]axs.
<br />The parties already have enough over which to litigate_ City staffC s proposed
<br />azxtexzdzzzeztts should not be added to that list. To the extent that it is, rzevextheless, eorrunittod to
<br />these azztezxdments, City should, at a ~ln.lxnum, (1) delay its e~nactzrzet~t until aver. Judge Varco
<br />rules on or befoz~e May S, 2010 (and probably on ox before tlpril 5, 2410) anal (2) issue a
<br />statutorily-prescribed extezts:ivn of its deadline to act ozt ERL's February 22, 2010 application, As
<br />it did fox Tiller's contexxzpoxaneousIy submitted mining CiJP application for the sarx~e portiozt of
<br />t),~e existi»,g 137.4-acre landfill property. Ex. 156. Indeed, as it dial be~'ore with its 1Vlarcla 30,
<br />2009 CUP/License amendmentt application, ERL would be u+illix~,g to issue a, voiuntaty extension
<br />of the statutory deadline as it relates to its February 22 Applicati.ozt. Alternatively, City could
<br />simply clarify that its amendments do not apply to ERL's March 30, 2009 applications. In other
<br />wards, ERL waters absolutely no part in City's efforts -intentional or not - to disrupt the fully
<br />bxzefed axed argued issues before Judge Varco regarding E~1..'s March 30, 2009 applications.
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