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Lawsuit Against Ada County Over Dynamis To Be Withdrawn

 March 13, 2013 ⋅  Post a comment

Counsel for the group suing Ada County over the Dynamis debacle have notified the GUARDIAN they intend to drop the complaint since it was against the former Ada Commishes and the new board has canceled the contract–at a cost of $2 million.

In a statement they said, “The plaintiffs in the Idaho Citizens, et al., v. Ada County lawsuit over the Dynamis Project have outlined eleven questions concerning the County’s current positions on the prior Commissioners’ conduct. They hope the (new) Ada County Commissioners will respond to those questions in the near future not only with words, but with actions.”

The attorney also said in a letter to the opposing lawyers, “Notwithstanding their view that these and other issues are by no means moot, the Plaintiffs have a great deal of hope and confidence that newly-elected Commissioners Case and Tibbs will fulfill their commitments make the mechanisms of Ada County’s government more open, honest, and transparent. Their task of rebuilding the public trust in the government of the County will not be an easy or a quick one, but they have already made a good start.”

The list of questions they want the new commishes to address follows:

1. What steps will the Commissioners take to ensure that potential liabilities of up to $70
million cannot be incurred by the unrestrained actions of a single Commissioner, as
appears to have been the case with former Commissioner Ullman? Will the
Commissioners consider, for example, proposals to enlarge the Board to include five
Commissioners instead of just three in an effort to avoid such consequences in the
future?

2. Will the County continue to claim that the one-on-one “serial meetings” which took
place between Commissioners Ullman, Yzaguirre, and Tillman and Dynamis
representatives are legal under Idaho’s Open Meeting Law, even though the Idaho
Attorney General takes the view that they are not?

3. In the motion to dismiss the Plaintiffs’ claims—a motion filed by the County before
Commissioners Case and Tibbs took office on January 14– the County claims that the
$2,000,000, which the Plaintiffs, Commissioner Case, and Commissioner Tibbs have
all alleged was a constitutionally-prohibited loan, was in fact not a loan and that it was
perfectly legal. Has the new Board of County Commissioners changed its position on
this issue? Either way, will any further transactions of this type be conducted in the
future?

4. In the same motion, the County claims that it had the statutory authority to contract
with Dynamis as it did, such as when it issued a sham “Request for Expressions of
Interest” to other contractors even though Dynamis had already been secretly preselected
for the project and when it sought to avoid any public participation at all in the
project as a whole. Has there been any change in this position, and will the County
operate this way in the future?

5. The motion to dismiss also alleges that the Idaho Local Land Use and Planning Act was
not violated by the County even though deliberate steps were taken to avoid public
participation in major, though deliberately obscured, land-use decisions designed to
accommodate the Dynamis Project. What is the County’s position on this issue, and
will the County plan future projects in a similar manner?

6. The Plaintiffs are happy to have heard that morale among County employees has
already improved since the new Commissioners took office. What will the
Commissioners do to ensure that future Boards or individual Commissioners cannot
unduly override the recommendations of knowledgeable County employees, as was the
case when the Board ignored the concerns and recommendations of engineer Jim
Farrens, who resigned, in part, because of the County’s conduct in handling the
project?

7. The termination agreement between Ada County and Dynamis did not address
Resolution 1863, which “reaffirmed” the use of the name “ARTIC” (“Ada Renewable
Technology Industrial Complex”) and seems to leave in place the designation of the
Landfill as an “industrial park” even though base zoning designations were never
formally amended to permit that. This could lead to future “Dynamis-type” leases at
the Landfill without public auction. What is the County’s position on this issue, and
does the County have any plans to continue to operate the Landfill as an “industrial
park” along these lines?

8. Throughout the course of the Dynamis Project, the County claimed that the placement
of the planned 22-Megawatt powerplant at the Landfill under the guise of Dynamis’
“waste-to-energy gasifier” was permitted as an “ancillary use” by Ordinance 772, an
ordinance adopted over a year after the first contract with Dynamis was signed. Does
the County still take that position? Also, will any action be taken to define what
permissible “ancillary uses” might be, where the County’s current view appears to be
that virtually anything at all might be deemed an “ancillary use?”

9. On November 14, 2012, the Ada County Board of Planning and Zoning wrote to the
Board of County Commissioners after conducting the first-ever public meeting on the
Dynamis Project. Among other things, the Planning and Zoning Commission said that
“the Commission believes that the approval of this project did not afford the public and
affected persons the opportunity to comment publicly as to the effect of the project on
them, and they did not have the opportunity to provide substantive input to the approval
process.” While the Plaintiffs respectfully disagree that the Dynamis Project could
have been properly approved under existing land-use and zoning laws and ordinances
even through the “conditional use permit” process, they are in full agreement with the
Commission’s conclusion that the public was denied an opportunity to participate in the
project. Does the County agree? If so, what will be done to ensure that the
participation of the public is sought after, rather than avoided, for future similar
projects of this type or scale?

10. As alleged in the Complaint and in the affidavits of several scientists who analyzed
Dynamis’ potential emissions of mercury, dioxins, and other toxins, the Dynamis
Project posed a potential health and environmental hazard not only to those nearest to
it, but also to the entire population of the Treasure Valley. However, the County took
no formal action at all to examine, from either a scientific or an engineering standpoint,
the potential risks of the plant. Commissioner Yzaguirre, for one, repeatedly stated
that the County was relying upon the Department of Environmental Quality (“DEQ”) to
ensure the environmental safety of the project, even though DEQ clearly stated that it
does not audit or verify in any way the claims made by its applicants. In the future,
what will the County do to ensure that the health and safety of its people are not
threatened in this manner?

11. Some of the Plaintiffs and other private citizens who sought Dynamis-related records
from the County via Public Records Act requests have said that the County’s
compliance with their requests was often delayed, possibly deliberately, and that
invoices for hundreds of dollars for those records running into the hundreds of dollars
often dissuaded and discouraged those citizens from actually picking the records up and
from making further requests. Part of those high costs are due to the County’s practice
of billing the document-review time of attorneys and other county employees to the
requestors, even though the wages of such employees have already been paid with
taxpayer dollars. Will the County consider changing its policies and procedures in
order to ensure that its citizens have as much access as possible to County public
records, and at as low a cost as possible?

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