Mr. Kerr -
Since our last meeting the City has been consulting with a land use attorney, Spencer Parsons, to review the city ordinances, MRM's permits and letters of compliance to determine whether MRM's current business and property use is in compliance. We are in the midst of that review and I believe the ultimate goal is to assist MRM with complying with its original permits and the current municipal code so that MRM can successfully operate its business.
In that vein, it is my belief that the property is zoned M-2 Industrial and the jaw-crushing activities are not permitted outright. Please see 17.16.020 M-2 Heavy Industrial District, Section J. My reading of the code is that jaw crushing activities would be a conditional use under section L. I do not believe MRM has a conditional use permit for that activity. I welcome any permits or documentation that state otherwise. If you can provide any, the City (in consultation with me and Ms. Parsons) will, of course, reconsider the Stop Work Order.
With respect to your suggestion that the City is culpable in the jaw crushing activities by dumping the street debris from the current street projects, I would also welcome any documentation or contracts that you are aware of that MRM and the City have executed in that regard. I am not aware of any. I do not believe any of that pile belongs to the City or is the City's responsibility.
Additionally, since our last meeting it is clear from reviewing additional maps that MRM removed not one tree in that section but at least three, possibly four, without appropriate permits.
Having said all that, it is my hope that through this process the City and MRM can work amicably together in order to bring the business into compliance. Until then, I believe the Stop Work Order is justified. If you have permits, documents, etc that will we can review to speed up the process, please send them our way. We would also like to sit down and have a meeting to determine how best to move forward. In order for it to be productive, however, we first need to finalize our review of all the documents. I will let you know when that is complete.
Sincerely,
Amy Lindgren
From: "robert" <robert@rkerrlaw.com>
To: "Amy Lindgren" <alindgren@molallapolice.com>
Sent: Tuesday, October 25, 2016 9:46:45 AM
Subject: Molalla Redi-Mix & Rock Products, Inc.
Settlement Communication
ORS 40.190
Amy Lindgren,
In accordance with arrangements made with you, I came to City Hall on Tuesday, October 11, 2016 to speak with you and Dan Zinder concerning the tree citation that he issued to my client Molalla Redi-Mix & Rock Products, Inc. (“MRM”) on July 18, 2016. I also intended to discuss the details of the settlement offer made to MRM in the City’s letter dated September 23, 2016.
Without prior notice, City Manager Dan Huff joined the meeting and he proceeded to regale me with accusations against MRM regarding MRM’s operation of a rock crusher on its property and that a stop work order would be issued the next day. Mr. Huff and you said that you just found out about it ten minutes before the meeting, and that the rock crusher had been in operation for two weeks. On the basis of that supposedly shocking news, you proceeded to withdraw the settlement offer made to MRM in the City’s letter dated September 23, 2016. (The equipment is actually a jaw crusher, not a rock crusher.)
The City went ahead and issued the stop work order on October 12, 2016. There are several things that are disturbing about the City’s issuance of a stop work order requiring that MRM cease rock crushing activities without a conditional use permit.
First, before the meeting began and before we started discussing the topic I was there to discuss, I was jumped without any warning on a topic I was not there to discuss. The City Manager promptly put on a show of real or pretended animus towards MRM during the meeting regarding the issue. Why you and he wanted to create such tension, I don’t know. Are you and Mr. Huff angry that MRM hired an attorney to look into the tree citation? It certainly seems that as soon as I got involved, the City became very contentious regarding a $1,000 citation. Are you and Mr. Huff angry at MRM for some other reason? Was it your intention to put on a show and act tough and attempt to intimidate me? If that was your intention and/or Mr. Huff’s intention, I can assure you that the show was not a hit.
Second, you and Mr. Huff talked as if a very serious, major violation was occurring that was causing significant harm, but you were unable to communicate why this was supposedly such a big deal and what, if any, harm had actually occurred by reason of the operation of a rock crusher. You pivoted by saying that citizens of the City were demanding that the City start getting tough with MRM due to prior noise and dust complaints. But those complaints were supposedly raised in July 2016 and possibly earlier, not within the last two weeks. Why didn’t the City share those obviously coordinated written complaints much earlier, and before I asked for discovery regarding the tree citation?
Third, you and Mr. Huff made clear that you believed that MRM was flouting the City’s ordinances by operating a rock crusher, that somehow MRM must think it can do anything it wants without a permit. MRM is doing nothing of the sort.
Fourth, it was suggested that MRM should know better than to use a rock crusher on its property after having received the City’s offer of settlement letter dated September 23, 2016, which referenced an unspecified act of grading without a permit by MRM. I asked for an explanation of the connection, as it was not apparent. Mr. Huff referenced the letter’s statement about a grading violation. I said that was one of the questions I had about the settlement letter, as I did not know what grading the City thought had been done by MRM. I said that I didn’t think that the grading ordinance would be implicated in operating a rock crusher, that grading related to earth movement. Mr. Huff responded that the operation of a rock crusher is a use that requires a permit. I repeatedly asked for an explanation of the grading that the City believes MRM completed without a permit. The response was the placement of rock or gravel on the property by MRM.
Fifth, Mr. Huff suggested, without any specifics or any factual basis, that MRM was not in compliance with DEQ requirements.
Sixth, Mr. Huff suggested, without any specifics or any factual basis, that MRM had a recognized wetland area on its property and that the DSL would find MRM’s use of the wetland area would violate some law.
What the City failed to do before regaling me at the beginning of Tuesday’s meeting was to investigate the prior use of rock crushers (jaw crushers) by MRM on its property. The City failed to recognize that pavement that is being removed right in front of City Hall and elsewhere along the roads in downtown Molalla is being delivered by the City to MRM and dumped right next to the jaw crusher that the City now finds so offensive, at no charge to the City or the City’s contractors. The City would recognize that the pavement is then recycled by MRM at no charge to the City or the City’s contractors. By issuing the stop work order, the City has ground that recycling operation to a halt.
That pile of City pavement that needs to be disposed of and recycled will continue to get bigger as the City continues to deliver pavement to MRM’s property. MRM may be forced to notify the City to stop making those deliveries, that the City needs to pay someone to remove the pavement it previously dumped on MRM’s property (that has not already been crushed by MRM’s jaw crusher), and the City needs to pay to haul the pavement and dump it somewhere else. I suspect that those circumstances would probably be uncomfortable to explain to the City Council and the community at large.
In addition, if the City would have investigated the matter before issuing a stop work order, it would have recognized the following: (1) MRM has stockpiled material on its property since 1999 without complaint and without any issue being raised by the City; (2) MRM has recycled stockpiled material on its property since at least 2006, without complaint and without any issue being raised by the City; and (3) MRM has been using a jaw crusher on its property since 2006, without complaint and without any issue being raised by the City. Molalla Redi-Mix & Rock Products, Inc. has been producing, buying, and selling rock products for over 40 years. None of this is breaking news, despite your and Mr. Huff’s attempt to present it otherwise. I think the reality is that both of you are fairly new to the City, and are not fully aware of MRM’s operations.
MRM hereby demands that the stop work order dated October 12, 2016 be immediately rescinded. The stop work order is without legal or factual basis. MRM has been conducting jaw crushing and stock piling activities on its heavy industrial zoned property for over 10 years without any conditional use permit requirement or any plan submittal and review by the City. The City’s attempt to shut down MRM’s rock crushing activities and the City’s implied threat to issues citations against MRM for grading without a permit or approved plans are not justified.
If the City fails to immediately rescind the stop work order, MRM reserves its right to immediately require the City to remove all of its pavement from MRM’s property at the City’s cost, and haul it and dispose of its elsewhere, at the City’s cost.
And regarding the other red herrings raised by the City Manager at Tuesday’s meeting, be advised that following the meeting, MRM has had two on-site inspections with DEQ and no violations of any kind were noted. The first inspection, a storm water site review, was previously scheduled. I have little doubt as to who made the call asking the DEQ air quality people to visit the second time. MRM is not aware of any wetland area on its batch plant property, where the jaw crusher is located.
Be advised that MRM is not intentionally attempting to create any problems for the City or for the residences that live near its property. MRM has been using its property consistently over many years, and consistent with a heavy industrial business operation. MRM has applied for and obtained permits when required by applicable law. MRM has been a valuable business presence in the City, a contributor to numerous City projects and non-profit organizations, and a good citizen. MRM is frankly shocked by the recent behavior by the City Manager, and respectfully requests that instead of firing off stop work orders and citations, it is hoped in the future that the City Manager instead pick up the phone and discuss whatever issues are of concern.
MRM and I welcome the opportunity to sit down with you and with Mr. Huff, to discuss these matters in a constructive manner, with a view towards reaching a resolution of MRM and the City’s legitimate concerns. Please contact me regarding your willingness to so meet for a settlement conference, and suggest some dates and times that would work.
Regards,
Robert A. Kerr, Esq.
Kerr Law Office P.C.
1001 Molalla Avenue, Suite 203
Oregon City, OR 97045
Phone: 503.723.4471
Cell: 503.828.7959
Member, Oregon State Bar and Washington State Bar
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