P&Z Minutes Oct. 15, 2015

Boundary County Planning and Zoning Commission
October 15, 2015 Regular Meeting

Attending: Matt Cossalman, John Cranor, Marciavee Cossette, Caleb Davis, Scott Fuller, Tim Heenan, Kim Peterson, Wade Purdom. Ron Self,
Staff: John Moss. Absent: Tevis Hull (Invited)

At 5:30 pm Co-Chairman John Cranor opened the regular meeting and asked for an approval of the minutes from the August 20 meeting. Self moved to accept, Davis seconded, and the minutes were approved unanimously.

Cranor noted the presence of three (3) visitors, asked them to sign in if they wished to speak, and told them that this was an informal meeting but time may be given to allow them to speak. They stated their names as L. Wayne Leen, Bart Dinning and Allen Thompson; all were present due to interest in the agenda item addressing flea markets.

{ Planning & Zoning minutes are transcribed from the conversation that takes place during the meeting. Topics are condensed, eliminating verbatim comment in order to condense the material. Key points are included in this extraction and all votes taken are recorded. }

Matt Cossalman arrived late, was welcomed, and spent some time reviewing the agenda while Co-Chairman Cranor continued the meeting.

Davis suggested that because of the presence of interested parties, the second item on the agenda be placed first. Cranor asked Chairman Cossalman to take over the chair and agreeing with the suggestion made by Davis he took over the meeting from Co-Chairman John Cranor. Cossalman then asked Staff to explain the Staff Analysis (Background and Considerations) regarding the agenda item “Should there be roadside prohibitions (e.g., flea markets)?”

Moss explained that there is an unregulated use (Section 15.2.16.) which refers to flea markets that do not exceed 7 consecutive days in duration. However, there are no other references to flea markets anywhere else in the ordinance. Since Boundary County does have yard sales and flea market activity, should there be more said in the ordinance? Considerations might be made regarding setback distance, for example, so as to minimize public safety concerns or a question of eyesore.

Cossalman asked the Commissioners for their comments.

The first question was 'What brought this question to the fore?' Staff explained that a neighbor of the property on which the flea market resides complained that he was unable to access his property using a shared easement with the flea market property. The complaint suggested that there wasn't room for both the flea market and the neighbor's vehicle to pass over the easement.

Since the owner of the flea market was present, Allen Thompson was asked if he knew about the complaint. Mr. Thompson expressed surprise and said that the neighbor had not complained to him, that this was the first he knew of the subject, and that (in Mr. Thompson's opinion) there was more than adequate room to share passage. Mr. Thompson stated that he would welcome a dialogue with his neighbor and that although he was unaware of any restraints in passage he (Mr. Thompson) would remain sensitive to the rights of shared easement and passage in the future would not be an issue.

Mr. Thompson stated that a marking tape set back on the property along the highway served to delineate the display line for merchants with items to be displayed/sold. He also said that these merchants were independent of his Mountain Man store (also on the property). His purpose is to provide a public service to the community, allowing those with items for sale to use his property. Finally, he stated that the season was almost over and that in the spring of next year the market contents would be relocated behind the power line running down the highway, serving as a better marker for displaying wares and providing better safety for those pulling off the highway to view the market.

The Commission discussed the wording of the unregulated items in question (Section 15.2.16) and Cossalman suggested that perhaps as a Conditional Light-Use, Section 15.3. might have flea markets identified by, for example, adding 15.3.17. Flea Market. This suggestion resulted from unclear relevance as to who owned what, was this a commercial activity run by one person of were a number of individuals acting independently as sellers? Cossalman's suggested addition simply focused on the appearance (of a flea market), and since it is held on someone's property that person would be responsible for obtaining a Conditional Use Permit.

The visitors were asked their opinion and all were in agreement that the Commission had addressed their concerns and were happy with the result. The Commission did not propose making a change to the ordinance, nor was the purpose of the meeting to do so. The meeting served its purpose in the regard of the flea market in raising an option for dealing with this and similar questions in the future.

The visitors left the meeting and Chairman Cossalman called fro a 10 minute recess. (6:10PM)

(6:20 PM) Chairman Cossalman called for a discussion regarding the first item on the agenda. Staff was asked to explain the Staff Analysis (Background and Considerations) regarding “”Duplex houses: can a parcel/property line divide a duplex?”

Staff explained: The ordinance establishes a setback distance by zone; this distance varies by zone in terms of number of feet from front, sides and rear property lines. Here is an example scenario:

A property owner wishes to place a duplex on a property line. To avoid the problem of violating the setback distance the owner is counseled to merge the two properties thus eliminating the common property line. The owner then builds the duplex and requests to divide the property, reinstating the original property line. The intent is to place the common wall of the duplex directly on the property line (as it looked before the construction).

Cossaalman interjected that the 'setbacks are for new construction on sites', to which staff responded that this was the reason for suggesting the original two parcels be combined. Although this seemed acceptable at the time, after the structure was built the owner said that finding a buyer for both parcels was problematic, while he had offers for each side f the duplex, separately, causing him to come back and split the parcel as it looked originally.

In discussing the situation with Boundary County lawyer Tevis Hull, staff was told the correct interpretation of the ordinance was applied, and that it was up to the P&Z Commission to review and allow (or disallow) a variance. In gaining clarification of the situation it appears that if a duplex is spelled out in the ordinance as being acceptable if being placed on a property line (all other setbacks applied) then a variance would not be required. This applies whether the structure is to be built on a property line or, after being created on a single parcel, a request is made to split the property, the new property line consistent with and aligned along the dividing wall of the duplex.

Discussed next was the possibility that the duplex might be permitted in all zones (consistent with current zoning guidelines). Although the immediate question concerned a Rural Residential zone, other zones might have similar situations. The question of 'buyer beware' would be clear, in viewing the property description, that a neighbor would in fact be closer than a setback would ordinarily allow. A variety of conditions might make such proximity acceptable, such as greenbelt and cluster considerations.

Discussions then revolved around the differences related to Town Houses, Duplexes and Condominiums; duplex structures are but one type of proximal dwelling. The key question then became, as asked by Caleb Davis, “What type of community would these dwellings consist of, and is this in line with the Comprehensive Plan”? Do we want to create a community similar to Bonner County, including Schweitzer? Kim Peterson suggested that people should be able to build what they want. That being said, if a change such as putting a building on a property line, or splitting a parcel such that a duplex is created because the building sits on a property line, this becomes a variance issue, for which the ordinance already provides.

There is no need to change the ordinance to accommodate a variety of 'what ifs', when the variance procedure exists for that purpose.

Staff expressed a concern that there are zero guidelines for the creation of a multifamily construction, whether one structure (apartment complex) or multiple building structures, e.g., Town Houses, Condominiums, Duplexes. There are no guidelines for driveway access, parking space, community-shared common areas, all a part of placing many people in a small space. We can contemplate something like cluster development but the fact is that placing many people in a crowded space creates space usage issues, and the ordinance is totally silent in this area. John Cranor suggested that the absence of something in the ordinance suggests the freedom to do what seems expedient to the property owner.

The P&Z Commission agreed that there be no new wording in the ordinance to accommodate duplex issues related to straddling a property line. Rather, all agreed that a situation involving property lines, whether before or after construction, requires a variance. Cossalman said that to deny a variance is to deny the use of the property. The nature of a variance is to provide approval for the use of property that would otherwise deny the property owner the use of his property. As applied, this means that when the duplex was first proposed to sit on a parcel line, a variance request at that time would be timely in order to commence construction. All agreed that the variance is intended to solve duplex on property line issues.

Cossaalman then asked about the fee structure as presented. Staff said that the new fees are related to the approved changes to the ordinance (2015-2), specifically the section related to Parcel Division. The new fees relate to new processes, while retaining the old processes (for subdivisions). The new fees parallel exactly the subdivision fees they were modeled from. After finding the changes acceptable, Chairman Cossalman asked for P&Z Commission approval of the new fees: motion made by John Cranor, seconded by Ron Self, carried unanimously.

Next to be considered, Cossalman reviewed the 4th item on the agenda: 2015-2 Section 4. - Enforcement. Staff explained concerns that failing to request a Special Event Permit, then holding a Special Event, results in the requirement of notifying the failed applicant that they are subject to a $1,000 fine. This procedure, as outlined in 2012-2 Section 4, is onerous to perform.

Kim Peterson suggested that when we make rules and then do nothing the rules are pointless, so why make rules? Tim Heenan said it feels like waiting for the stop sign to be run before we review the rules and see what we can do.

Staff explained that the party was contacted prior to the event, but since the new ordinance was not implemented until well within the 45 day pre-activity notification period it seemed unwise to threaten a fine while at the same time insisting that an application was necessary.

A Commission member asked why we didn't have a legal representative here at the P&Z Commission hearing to assist in understanding the issues involved? Caleb Davis asked why not notify the party that they are in violation? Staff response is that an explanatory message was sent, notifying of the requirement that was not met and requesting a meeting to discuss the overall Special Event process (to which said meeting request has not been responded).

Scott Fuller asked why the Special Event process, or even a Conditional Use Permit, has been resisted. Staff explained that the history of meeting with the applicant has been related to some misunderstandings related to Ordinance verbiage related to Conditional Use Permits and Special Event Permits., and the interpretation placed on their activity coupled with ordinance verbiage led them to believe there is no need for a permit of any kind. With the update of the ordinance, and specifically the verbiage related to Special Event Permit, the argument for the need for a permit becomes moot: a permit is now clearly required.

Kim Peterson asked why the fear of submitting a request fro a Conditional Use Permit? Staff responded that the possibility of establishing Terms & Conditions acted as a prime deterrent to facing a hearing where these could be imposed. He explained that the Special Event application, in contrast, does not involve a hearing but that the Administrator could impose Terms & Conditions on the Special Event, if the situation warranted. These Terms & Conditions, and the fear that they might be imposed, have served as a deterrent to requesting a permit.

Staff asked to make something perfectly clear: it is not the duty of the Administrator to serve as a policemen, monitoring activity for compliance or conforming to the details of any Terms & Conditions imposed. Rather, if as the result of an incident (whatever the nature) at an event, mitigating steps were not implemented, then (working with the applicant) procedures would be discussed that would help prevent a similar event in the future. If, and ONLY IF, such an understanding can not be reached, would the possibility of Terms & Conditions be considered. Even then, this is less than desirable since the role of the Administrator does not include scrutinizing an event for compliance.

The purpose of the permit is first to establish community awareness (property neighbors) and the participation of service organizations (EMT, fire, sheriff) than it is to impose a negative aura associated with the event. Caleb Davis asked how long since a letter was mailed to the applicant informing of concerns regarding failure to request an application? Staff replied “ten days”. Davis, quoting Section 4.5, Notice of Complaint - “The administrator will request that the property owner contact the office within ten business days to either defend against the allegation or to make arrangements to abate the violation.”. Staff replied that in fact the letter is what that contact represented, but – now what?

Staff went on to say that Tevis read through Section 4 and thought there needed to be changes made, whereupon Cossalman stated that Tevis Hull needed to be here. Staff replied that Mr. Hull was invited specifically to attend this meeting but that circumstances prevented his being present. Cossalman insisted that there is a need to have a legal representative present at all P&Z meetings, and others volunteered that Bonner County and others all have a lawyer present for all of their meetings.

It was agreed by all present that any difficulty in this process, to make any changes or suggest any resolution to this question, cannot be done in this meeting. Cossalman requested that Staff make a recommendation to the Commissioners that legal council be present at all P&Z meetings, and asked for a consensus vote to this effect. Specifically: “The P&Z Commission has not been receiving timely legal advice and would like the County Commissioners to remedy this.”

Staff interrupted and said that Tevis comes to him with answers to questions, and if there is a failure to communicate here perhaps it is with the Administrator and not Tevis where a breakdown occurs. Perhaps there can be better communication between the Administrator and the P&Z Commission explaining what questions have been asked and what replies received so as to better understand the benefit of the resource we have in Mr. Hull's advice.

Cossalman disagreed and stated that there have been too many times where direct advice to the Commission was essential and was lacking. The need exists to have legal council present at these meetings, even more so at public hearings where dynamics of real situations come into play. Davis asked whether the job description of the county lawyer included being present at these meetings. Staff responded that when asking the Commissioners this very question, the response was “That's his job. If you need him present, he can call in on a conference call.” Thus it is up to us, at this point, to call him. Davis replied “If it is in his job description then he should be here. If there is to be a telephone hookup, this should be preplanned and agreed upon so we can all benefit from his council on specific questions we have all considered and require his advice.”

Conversation swirled at this point: Should we make a motion to tell the Commissioners we need legal advice? Is the existing ordinance sufficient and we simply follow the guidelines we have? How can we get a legal opinion in a timely manner?

Cossalman feels that in order to be included in the minutes, a motion must be made. Staff replied that the minutes will carry this conversation, whereupon Self said “Oh no another 24 page minutes!” and at this point Fuller asked “What action can the P&Z Commission take that would be most helpful to the Administrator”

Staff responded that in the future there will be time to deal with advance notice issues (45 days lead time), but that the problem being faced now is the result of not enough time to justify action that seems justified per Section 4, but which action is implied based on Section 8 wording, but Section 8 as it stands now wasn't implemented fast enough to provide adequate time for an applicant to respond appropriately. The whole purpose of the (new) Section 8 is to provide support for the activity through community awareness, NOT to wave a club and threaten penalties for failure to comply.

Cossalman asked if we can get a backup attorney? (rhetorical question) The suggestion was made by Caleb Davis that the minutes reflect the presence (or absence) of legal council, especially if council was invited and is absent. Peterson moved that attention be brought to the Commissioners that there is a need for legal council to be present at P&Z meetings. Wade Purdom seconded, passed unanimously.

Cossalman asked if there was any more business to attend to, and with no more ado Ron Self moved to adjourn, Caleb Davis seconded, approved unanimously at 6:30PM.

John B. Moss

____________________________________ _________________
Matt Cossalman, Chairman Date

Thursday, October 15, 2015 - 18:00
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