Ada County Highway District

ACHD News Friday, June 11, 2021

ACHD Sheds Light on Salt Shed Issue

While we were originally not going to speak on the pending issue of the Salt Shed, we have a responsibility to clear up and correct the inaccuracies and misconceptions surrounding this issue. We write this letter in hopes of providing the public with the facts and preventing further spread of mistruths proving detrimental to the entire community. As such, this letter will address three issues. First, the narrative implied by the recent article published in the Idaho Statesman is not accurate. Second, there are numerous factual statements in the article which are also inaccurate. Third, and finally, there are several points relevant to the article which are either unaddressed or not fully explained. Each is addressed in turn.

  1. The Narrative Implied in a Recent Article is Inaccurate

The article repeatedly implies that this is a battle between two governmental entities that cannot get along. As far as ACHD is concerned, that is not true. At the time the salt shed was constructed, both ACHD and Garden City knew that it was not only going to be there for three years, which explains why the Conditional Use Permit ("CUP")-which ACHD was not even required to obtain-allowed for yearly extensions approved by a Garden City staff member. Notably, both Garden City and ACHD (among others) were parties to a National Pollutant Discharge Elimination System ("NPDES") permit granted by the U.S. Environmental Protection Agency, which required the salt shed be built. ACHD takes our responsibility to protect the environment very seriously and believed Garden City to hold this obligation in the same regard. Thus, ACHD expected Garden City to act as its partner in complying with the NPDES and grant regular extensions to the CUP. Garden City has not done that.

In contrast, ACHD has been in frequent and cordial contact with Garden City officials in an attempt to resolve this dispute amicably and within the relevant legal boundaries. Unfortunately, that has proven difficult. For example, as noted in the article, ACHD did apply for a one-year extension of its CUP, as the permit itself allowed. Garden City denied that request, but in doing so failed to make the necessary factual findings and legal conclusions required by Idaho law. ACHD explained this to Garden City and asked Garden City to reconsider its denial on that basis. Garden City did not alter its decision.

As a result, ACHD was forced to seek judicial review of Garden City's administrative decision. For clarification, this is different than filing a traditional lawsuit against Garden City; ACHD merely asked the court to determine whether the Garden City City Council had followed Idaho administrative law in denying ACHD's extension request. Only then, after seeking judicial assistance, did ACHD learn that Garden City had failed to keep any record of the meetings-whatsoever-in which it denied ACHD's request. Understandably, it is very difficult for a Judge to review an administrative record when the administrative record does not exist. Thus, ACHD and Garden City agreed to stay (pause) ACHD's Petition for Judicial Review in order to allow Garden City to correct this basic failure.

Next, ACHD requested that Garden City interpret the Garden City Code and determine that the shed and the salt/sand piles it covers are a legal, non-conforming use. In response, Garden City told ACHD (among other things) that ACHD had to establish what the state of Garden City's zoning law was at the time ACHD began using the Adams Yard for its current purpose. In an effort to do so, ACHD asked Garden City to provide copies of the Garden City ordinances in effect when the Adams Yard began storing salt and sand. Garden City refused-even though the agency is legally required to maintain those records. In other words, Garden City has refused to provide ACHD with the very material needed to meet the demands Garden City has made.

Simply put, ACHD has been attempting-for a very long time now-to work cooperatively with Garden City as stewards of the public trust placed in each of them to manage this situation in a respectful and cost-effective manner which still protects ACHD's legal and constitutional rights. Due to Garden City's intransigence, however, this has not been productive and has required significant time and substantive legal analysis. Nonetheless, Garden City has not substantively engaged in that discussion with ACHD. Instead, Garden City has resorted to threatening litigation, as stated in the article, while ACHD has proposed "in the spirit of being a good partner and neighbor" that the parties work "collaboratively" to "explore ideas that would, [while waiting for the shed to be moved], enhance the Adams maintenance facility's appearance..."

Garden City has never offered any solution to resolve this issue. Without casting aspersions, it seems the only realistic explanation for Garden City pursuing a course of conduct--for years--that effectively forces ACHD to move the salt shed: money. This explanation is twofold. Garden City, one of many municipalities in Ada County, wants all residents of Ada County to pay for the removal of the shed (and to ultimately shoulder the increased maintenance and operational costs associated with relocating the shed), even those who do not live in Garden City. That cost could range from $350,000 for a quick move to $650,000 to make it safe, secure, and operationally viable. Presumably, Garden City wants the property used for a different purpose all-together and by a different owner; if it were a privately-owned multi-family development near the Boise River, that would have a dramatically positive effect on Garden City's tax base. Currently, they receive no tax revenue from ACHD's property. We come to this conclusion based on Garden City's revised Comprehensive Plan which rezones our current property as mixed use residential.

     2. The Article Contains Numerous Factual Inaccuracies

Separately, there are several inaccuracies in the article we would like to correct. They are identified below and followed by a correction.

The article states: "Local-government leaders don't always play well together when interests clash. In the case of the Ada County Highway District and the Garden City Council, a dispute has escalated into a lawsuit and allegations of bad faith."

ACHD has not accused Garden City of bad faith during discussions to date. Instead, on August 27, 2020, ACHD asked Garden City to reconsider their denial of its request for an extension on ACHD's CUP, explaining that the Garden City City Council had failed to follow the requirements of Idaho's Administrative Procedures Act and Idaho law. Garden City denied that request. ACHD then filed a Petition for Judicial Review naming the Garden City City Council on the same basis. In other words, rather than claiming Garden City acted in "bad faith," ACHD was simply identifying legal deficiencies underlying Garden City's decision.

The article also states: "ACHD and Garden City have clashed for months over the location of a large open-ended canopy and the sand and salt it covers on an ACHD work site near the Boise River Greenbelt. Neighbors want them removed because the sand and salt lie within a floodplain and could put residents at risk, Mayor John Evans says."

This is incorrect. Garden City has not requested that ACHD move the salt and sand pile. They have only requested ACHD move the shed structure.

Next, the article states: "When the council last year denied an extension of the highway district's permit for the canopy, which ACHD calls a shed, ACHD sued to overturn the decision."

ACHD did not sue Garden City to overturn the decision. ACHD filed a Petition for Judicial Review asserting that the Garden City City Council failed to comply with Idaho law. That petition did not ask the Court to "overturn" the Garden City City Council decision-it sought a determination whether Garden City had complied with the law.

The article also states: "In 2017, the Garden City Planning and Zoning Commission approved a three-year permit to allow ACHD to cover sand and salt there with a 50-foot-tall structure."

It's important to understand that the CUP also allowed for one-year extensions to be granted by a Garden City staff member. This is discussed more fully below. Notably, since that time, Garden City revised its City Code to require City Council approval of an extension, but under Idaho law ACHD's CUP should have been evaluated under the code in effect at the time the CUP was granted. Garden City erred in not doing so.

The article continues: "ACHD is required by the U.S. Environmental Protection Agency to cover the salt and sand to protect the Boise River from runoff that could pollute the river. ACHD also wants to protect the salt from precipitation and erosion and elevate it to protect it from washing away in a flood."

Garden City is also a party to the National Pollutant Discharge Elimination System ("NPDES") permit granted by the U.S. Environmental Protection Agency and has been since 2000. Garden City has on several occasions agreed to its terms, one of which is that ACHD is required to build a structure over the salt/sand pile. In other words, Garden City should not be surprised that ACHD must keep the structure in place.

The article then moves into a discussion concerning the floodplain, and states: "Garden City residents nearby never agreed to live next to the shed for more than three years, Evans said. The council has heard from residents in the neighborhood that they want it removed, he said."

First, as we've noted, the CUP allowed for one-year extensions, and implying that Garden City (or its residents) never agreed to the shed remaining for more than three years is incorrect. ACHD applied to Garden City for the CUP, which was granted on June 27, 2017. The CUP by its terms would be effective for three years from the date of Certificate of Occupancy, however the CUP specifically provided that Garden City Development Services could approve one year extensions of the CUP. The Certificate of Occupancy was issued June 11, 2018, making the CUP effective until June 11, 2021--unless an extension was granted. In that instance, the CUP would be effective until June 11, 2022. However, on January 28, 2019, the City Council enacted Ordinance No. 1002-18 that changed the standards for extension request, and it changed the determination from a staff level decision to one now to be made by the City Council. On July 22, 2020, ACHD requested a one-year extension for the CUP, which was improperly denied by the City Council on August 12, 2020 due to its failure to apply the appropriate standard, comply with Idaho Code § 67-6528, make proper findings of fact and conclusions of law, and maintain a proper record of the proceedings.

Indeed, as far back as November 27, 2017, Garden City had requested ACHD enter into a Special Agreement, and ACHD refused to do so because the shed structure, itself, was temporary in nature, but also intended to allow ACHD to provide "good customer service to the taxpayers while ensuring the safety of [its] citizens and being responsible stewards of taxpayer dollars. The construction of [the shed] allows ACHD to do just this while remaining compliant with [its] EPA mandates." In other words, while the shed itself is a temporary structure, its presence was not intended to be temporary; it was intended to allow ACHD to serve its citizenry and comply with EPA mandates--which were not limited to three years. Garden City did not require the Special Agreement be executed, and ultimately issued the building permit for the shed.

In short, there is no written agreement by ACHD limiting the shed to a three-year period, nor did the Garden City City Council limit its approval of the shed to that period of time. By its express terms, the CUP provided for a three-year term, but it also authorized a staff-level extension of one-year. Consistent with the terms of the CUP, ACHD requested a one-year extension of the CUP. The City Council subsequently changed its standards and decision-making processes and, on that basis, it impermissibly denied ACHD's extension request. Nevertheless, the CUP was not limited to three years.

Second, Garden City has never asked ACHD to move the salt/sand piles. ACHD told Garden City that if ACHD were to remove only the shed, it would have to be replaced by a tarp, which would be less visually pleasing. Garden City did not change its opinion or ask that the salt/sand piles be moved.

The article continues: "Also, the piles are a mere 6 inches above the 100-year floodplain. Garden City now requires a 3-foot elevation."

While the floodplain concerns have nothing to do with the dispute between ACHD and Garden City, Garden City approved the location of the shed knowing it was in the floodplain three years ago. ACHD notes that it constructed above the base floodplain elevation. Additionally, ACHD has in place an emergency flood evacuation plan and, in the face of a flood event, can relocate the salt/sand pile to different areas of the Adams Yard which is within the 500-year flood event area. ACHD has an approved evacuation plan in the event of flooding, and flood insurance for both the structure and its contents. Again, Garden City has only raised issues concerning the shed itself-the location of the salt/sand piles is not a source of this dispute.

The article then states: "The highway district sued the city. ACHD says it has a property right under the Idaho Constitution to maintain the shed because the sand and salt piles are a legal preexisting use."

Although that litigation is pending, it must be noted that ACHD has not sued the City. ACHD sought judicial review of the Garden City City Council's administrative decision concerning ACHD's CUP, and named the City Council as part of that petition.

The article then states: "ACHD then paused the lawsuit when it proposed a bill to the Legislature this year that would let it keep the shed and piles by exempting essential transportation facilities from state and local plans and ordinances."

This is not correct. ACHD and Garden City jointly agreed to stay the Petition for Judicial Review because Garden City had failed to maintain appropriate public records by not recording or keeping minutes of either public meeting in which they addressed ACHD's CUP. Ada County District Judge Jonathan Medema entered the order staying the Petition for Judicial Review. Agreeing to stay the Judicial Review was not related to the proposed legislation.

Finally, the article states: "The Senate Committee on Local Government and Taxation killed the bill, saying it seemed to address a hyper-local matter. Committee members asked that the two sides work out the disagreement themselves."

This is not correct. The bill was held in committee at the call of the Committee Chairman. Both Garden City and ACHD were requested to find a solution.

     3. Factual Issues Unaddressed in the Article, but Which are Relevant

There are several points omitted from the article or not fully addressed. In the interest of brevity, they are identified by bullet point below:

  • Idaho Code Section 67-6528 requires that Garden City, in making land use decisions, "take into account the plans and needs" of agencies such as ACHD. That necessarily includes ACHD's obligations to the traveling public, its statutory fiduciary responsibility to Ada County taxpayers regarding investments, resources and expenditure, and its requirement to continue its maintenance operations in compliance with federal law. To date, the City has not provided any evidence or facts to support that it has taken ACHD's special needs and plans into account in any of its decision-making regarding the Salt Shed. The proposed legislation referenced in the article, Senate Bill 1106, was in response to Garden City's failure to do so.
  • ACHD's most recent request for a sixty-day extension was not a new application. Instead, it was suggested by Mayor Evans in the hope it would give the parties sixty days to find a resolution. Mayor Evans has publicly stated that he does not object to the shed, but that it is his City Council that is opposed to it. If Mayor Evans' position has changed, that is new information to ACHD. 
  • As with everyone else, COVID affected ACHD and negatively impacted ACHD's ability to move forward with a relocation of the Adam's Yard with funding. 
  • As indicated in our press release published earlier this month, ACHD is under contract to purchase property near Federal Way, and that property is intended to be the new location for the Maintenance Operations currently located at the Adams Yard. As we also indicated, this relocation will take strategic planning and ACHD will do consider all options when the time comes to move the operation.

In closing, we want to re-iterate that ACHD remains willing and open to working with Garden City to find a reasonable solution. We work daily to meet our fiduciary responsibility to the Ada County taxpayers, uphold our commitment to be environmental stewards, be good collaborative partners to the agencies we work with, and be thoughtful neighbors. We hope to find a reasonable resolution that will allow us to focus on the important work to be done in transportation throughout the county.

Respectfully,

 

ADA COUNTY HIGHWAY DISTRICT

 


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