As the polls closed on Nov. 5, voters decided the fate of the presidential election and Buckeye City Council assumed a quasi-judicial role to decide the fate of an agriculture company’s appeal to build a wall.
The request: Require that American Iron & Metal Recycling Phoenix LLC construct a concrete masonry unit — or CMU — wall on the edge of its property abutting 160 acres of unincorporated farmland to the west owned by Miedema Produce Inc. This would require overturning the Planning and Zoning Commission's Sept. 10 approval of AIM’s site plan for phase one of its new recycling facility.
AIM’s rail-serviced recycling plant is being constructed for the “downstream” sorting of pre-shredded recyclable metals. No crushing or screening allowed. The project has been approximately two years in the making.
Miedema is a Michigan-based company with one plant in Michigan and two Arizona locations in Buckeye and Surprise. The Buckeye fields are mixed-use with rotating crops. That’s not the planned forever use of the land, however. Miedema bought the fields with the intention of moving its packing plant from Surprise to Buckeye. However, AIM’s arrival has put a wrench in the plans. Being next door to a recycling plant, separated by nothing more than a slatted chain-link fence could put the plant at risk of being jeopardized from infiltration of pests and debris, said Paul Gilbert of Gilbert Billie PLLC who represented Miedema at the Nov. 5 council meeting.
That’s why a CMU wall must go up, said Gilbert. And Miedema wanted AIM to foot the bill.
AIM was represented by Benjamin Graff, a land use and zoning attorney at Quarles & Brady LLP, who countered Gilbert’s argument by asking “what packaging plant?” His client’s site is already approved. They’ve been working on the process since 2022 in a “two-year courtship with the city to locate this perfect site,” he said. Miedema’s future plans for a packing facility are just that: Plans. It’s purely aspirational, he argued, so AIM shouldn’t have to foot the bill for something that doesn’t exist.
But, AIM has an obligation, said Gilbert, and so does the city. He presented Development Code Section 5.9 regarding industrial building standards and guidelines, quoting the following: “General intent: To encourage high-quality design appropriate for industrial use while promoting economic development, protecting adjacent uses and fostering a positive image for the community.”
Emphasis on “protecting adjacent uses.”
“We submit to you this evening that this is an obligation under your ordinance that has not been addressed,” Gilbert said. “And for that reason, we are requesting tonight that you do just that and give us this protection from this very intense industrial recycling facility. … The incompatible nature of high industrial and agriculture should require additional protection for our facility both now and what we hope to build in the packaging plant.”
What does it need protection from? Pests such as rodents and debris, Gilbert explained. He cited the FSMA Produce Safety Rule stating that packing facilities must “take those measures reasonably necessary to protect covered produce, food contact surfaces and food-packaging materials from contamination by pests.” He also cited PrimusGFS guidelines stating “there should be a documented risk assessment for the facility to identify and control any food safety hazards relevant to facility location and adjacent land use (e.g., animal activity, industrial activity, etc.).”
“Pests are a major concern in the food industry — whether growing, packaging or shipping any food products,” Gilbert said. “It can cause a number of potential diseases that get into the food supply at any point in the process.”
“A flimsy chain-link fence is simply not appropriate or sufficient to provide adequate protection for our facility,” Gilbert additionally said.
Or is it?
The photos presented as evidence aren’t reflective of what is going on at the AIM facility, countered the city’s Planning Manager Ken Galica. Remember: They’re processing pre-shredded metals. There is no shredding or crushing being done on the property. Everything is kept in a bin and pile storage and loading area with a height limit of 15 feet. All I’s were dotted and T’s were crossed in the approval process by Planning and Zoning, Galica claimed. He also supported Graff’s argument that AIM shouldn’t have to pay for a wall to protect something that doesn’t yet exist. Miedema’s plant is conceptual. AIM’s is real.
“Certainly there is no issue in the future if and when that property comes into development that the developer would construct their own wall,” Galica said of Miedema. “That is typically what would happen if they need something for a requirement of code.”
To approve the appeal, argued Graff, would actually be deviating from the code. It would mean that AIM would have to spend thousands of dollars for the CMU wall. That’s unfair, he said, especially when AIM already tried to make private negotiations with Miedema to reach a compromise by offering to pay for half of the wall.
“We offered to split the cost with Miedema, which we felt was an incredibly fair offer considering the wall is being requested on our property, not theirs,” he said. “We waited and waited and waited and the Friday before the appeal, Mr. Gilbert called me and said, ‘how about we don’t split it, but how about your client build 50% of the wall and leave the rest chain-link.’ … why would you ask that if you needed the full length of the wall?”
Gilbert’s response, Graff said, was that Miedema couldn’t take on the cost at that time.
“We found it incredibly perplexing,” Graff said. “We would ask the city council tonight to deny the appeal and uphold the site plan approval that was worked on so hard by your very own staff.”
As his finale, Graff presented photos of what he said were Miedema’s sites in Michigan and Surprise — both with chain link fences. Gilbert denied that one of the photos shown by Graff was a Miedema plant. Also, if there is a chain-link fence, he said, it’s because there isn’t an “intense” industrial site next door.
“They’re causing the problem, they should be the ones to pay for the wall,” Gilbert insisted. “It should not be our responsibility to pay for the CMU wall, which we need, because they are the ones causing the problem, not us.”
Miedema’s owner Todd Miedema took the stand briefly to reinforce Gilbert’s statements: “CMU walls are the standard and they are clearly successful,” he said. “We are not standing in the way of this recycling facility. We are good neighbors.”
However, Galicia agreed with Graff: Planning and Zoning’s approval complies with Code 5.9. He recommended the mayor and council deny Miedema’s appeal.
The council and mayor began their questioning.
Did Planning and Zoning approve the site to the letter of the city code’s law? It appears so.
Have other facilities like AIM been asked to build a CMU wall? It depends on what is adjacent. For example, Five Below and Funko have CMU walls because of residential properties next door.
But what about the view from Baseline Road? Won’t it look bad? Galica suggested the answer is no and speculated that the slatted chain-link fence will make the industrial property less visible.
Has Miedema filed anything for the packing plant or is it only agriculture at this point? Nothing is filed. It’s only agricultural.
Does the FDA require a CMU wall as best practice? No, Gilbert said, but it does require the site to conduct risk assessments to determine what is needed. Miedema assessed that the wall will be needed for its packaging facility.
But, the packaging facility isn’t a for-sure plan, right? Correct.
And the code only states that the city must protect current uses, not future uses, yes? Yes.
“You have the intention of putting a packaging plant up on this property but haven't taken any active steps either with the city or county to solidify that,” said District 6 Councilmember Clay Goodman. “Right now, that’s an aspiration.”
“We brought the property with the intention of putting a packaging plan there,” Gilbert replied. “It’s a reality for us.”
“That you for considering Buckeye for that, but you’ve not taken any active steps in that direction other than purchasing a property five years ago,” Goodman said. “Aspiration is not a bad thing, it’s not. Absolutely not. But I think that what we’re being asked as a council is to adjudicate this appeal and what we have to go to is what our code says.”
Goodman countered: But if they won’t do it now, will they do it in the future? It will be Miedema’s responsibility in the future, Goodman replied.
“I think timing is everything here. If you had come forward and had annexation in progress and you had plans and a timeline for your packaging facility, this would be a much different conversation,” he said. “They’re ready to turn dirt. You’re turning dirt for another reason.”
In the end, the appeal was unanimously denied.
