Should council have listened?

A judge questioned Friday why the Moxee City Council didn't listen to hearing tapes or read a transcript before deciding to deny a controversial plant that turns waste tires into usable products.

Superior Court Judge James Gavin didn't rule on a request to overturn the council's January decision and issue a permit for the plant, promising instead to try to have a decision by Oct. 17.

He did, however, appear troubled that the council action didn't include evidence submitted during two hearings before a land-use official. Only one council member listened to the tapes, according to declarations filed in the case.

The City Council, on a 4-1 vote on Jan. 31, said a Tacoma firm, Organic Energy Conversion Co., failed to provide enough information on the plant's potential impacts.

But Gavin, at the end of Friday's more than five-hour hearing on the firm's appeal, wondered whether council members might have had their questions answered with the help of the tapes.

"What I'm trying to figure out: Is the law such that they should have listened?" Gavin said from the bench. "Is there information that relates to noise they didn't realize was there or storm water runoff?"

City Attorney Bob Noe told Gavin the council had the full record, including the land-use official's recommendation, before making the decision.

Jamie Carmody, a Yakima attorney representing the firm, argued that the failure to listen is evidence that the council made its decision based on public opposition.

"They have no evidence to base a denial on if they don't listen to it. How do you make judgments? How do you support it? It doesn't make sense."

Carmody argued the firm did everything asked of it by the city, including posting a $600,000 bond, as a sign the company was serious about operating a plant that met all requirements.

"This project was denied without a tangible piece of evidence. I find nothing that is an unmitigated impact. We still live in a country where property rights mean something," he said.

The firm applied in 2007 to build the $25 million, one-of-a-kind plant in an existing storage warehouse at 8100 Postma Road.

The technology, known as pyrolysis, extracts low-grade diesel, steel and carbon black by heating shredded tires in an enclosed chamber up to 600 degrees Fahrenheit. The process, while technically feasible, has been dogged by a lack of markets for the byproducts.

Organic Energy Conversion, a joint American-Australian venture, promised it had the markets and could employ 60 people working around the clock to process the tires.

The tires would arrive tightly baled and would be shredded before processing.

A plant of this type isn't listed in the city zoning code and City Supervisor Byron Adams said the most stringent level of review was necessary, one that included the public hearing before Hearing Examiner Phil Lamb.

Lamb conducted two hearings on the proposal.

Noe argued the lack of a listed use meant Adams' decision to proceed with the review was only an interim step. The final decision on whether the project complied with the city's comprehensive plan lay with the City Council, he said.

* David Lester can be reached at 577-7674 or dlester@yakimaherald.com.

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