AMENDED MINUTES
Boundary County Planning & Zoning Commission
May 16, 2002
Members present: Mary Ann Luedtke, Jacob Epstein, Jim Paulus, Lon Merrifield, Marc Paulson, Jane Kirby, Doug Reoch, Donna Standley. Members absent, Ed Torrence. Staff present, Mike Weland.
1. Paulus called the meeting to order at 5:30 p.m., introduced Jacob Epstein and Doug Reoch as the newest members of the Planning and Zoning Commission, and called for reading of the April minutes. Paulson moved to waive reading and approve the minutes as presented; Luedtke seconded and the motion carried unanimously.
2. Paulus read the procedure for public hearings and re-opened public hearing on SUP 0202 by Continental Lands, Inc. No member cited conflict of interest. Gary Regehr, speaking for the owners, stated that he and the other owners had discussed the application and had decided against adding a lodge, said there was no outfitting intended and that based on this, no special use permit was required; he therefore withdrew the application.
3. Paulus opened public hearing on VAR 02-01 by Lon Merrifield, Merrifield stepped down and joined the audience; no other member cited conflict of interest. Merrifield stated that the ten acre piece on which the variance was sought was bisected by a road, and that the topography of the ground and existence of the road made the road the best dividing line for splitting the parcel; he stated that the lot could be divided into two conforming five-acre lots, but that should division would be “messy” due to the shape of the parcel, combined with the topography and the placement of the road upon it. He introduced a topographical map showing the layout of the parcel and the placement of the road and a photo taken from the road and entered both into the record. He stated the division sought would create parcels approximately 3.5 and 6.5 acres in size. Epstein asked if the need for the variance was more for convenience rather than necessity, and asked if splitting the two parcels into conforming lots would create hardship, Merrifield said it would not, but that the proposed division was the best option available. Luedtke clarified that the location of the road was not the sole reason for requesting the variance, Merrifield said the lay of the ground made it sensible. He stated for property owners gain access over the existing private road. Standley asked if any adjoining property owners had expressed concern over the proposal, none had. Merrifield said the property has natural gas and Cabinet Mountain Water. Paulus called for public comment from those in favor, there were none. He called for public comment uncommitted, there was none. He called for public comment from those opposed, there were none. There was no closing statement by Merrifield and the hearing was closed to public testimony. Kirby asked Merrifield to show her the location of County Road 22C on a map she brought, Merrifield pointed it out. Epstein asked that if the variance were granted, which would be the better of the two lots, the nonconforming one or the conforming; Merrifield said that it was in the eye of the beholder; that one had a better view, the other had more flat ground. Luedtke stated that it was her opinion that three acres was close enough to the minimum five acre parcel size required, and said the Planning and Zoning Commission had, in the past, granted variances very similar to this based on the topography. Epstein said he has no problem with granting such a variance, but he doesn’t feel the applicant proved undo hardship as required by IC 67-6516, he said that because of this, he felt the parcel should be divided into two conforming lots. There being no further discussion, Paulson made motion to approve application VAR 02-01 as presented, Luedtke seconded. Epstein asked if members had comments on his concerns over conforming to Idaho Code, none did and the motion was brought to a vote. Epstein voted, “Nay,” remaining members voted, “Aye” and the motion carried.
4. Paulus opened public hearing on AM 02-01 by the Planning and Zoning Commission and asked staff to summarize the contents of the ordinance amendments proposed. In reading the summary, Weland noted that the word, “mitigation” in proposed amendments to Chapter 11 was unintentional; the word meant was, “mediation.” Following the staff reading, Paulus called for public comment from those in favor; there was none. Paulus called for public comment from those uncommitted, there was none. Paulus called for public comment from those opposed; Dennis Swenson, County Road 34, said he felt the penalty provisions, a $300 fine, was not enough to deter people from violating the ordinance and recommended that it be drafted in such a way that each day the violation continued be a separate violation. He stated that this would give the prosecutor a “hammer” to use if necessary, but stated that if the person in violation were sincere in coming into compliance, the prosecutor could waive the fines. He also stated that under Idaho Code, a citizen can take enforcement action short of litigation if the zoning administrator did not, and felt such provisions allowing citizens to enforce the code should be included. There being no further public comment, Paulus closed the hearing to public testimony and called for discussion among members. Epstein asked if the commission would consider discussing it amendment by amendment and voting separately on each one; Luedtke stated that the commission had been working on them for three months and that each separate proposal had been discussed in depth. Paulson concurred, saying the current proposal had been derived one amendment at a time and that the package as presented was the result of that work. Luedtke said she felt Swenson’s idea was a good one in that it provided, “the best teeth I’ve heard.” She stated she felt such stipulation should be included. Paulson clarified the difference between an infraction and a misdemeanor. Paulson said he liked the clause and concurred it should be added. Paulus asked staff if such provision could be added, staff stated it could, but would be considered a substantial change and require an additional public hearing. Luedtke said such a provision would help in enforcement of the ordinance. Paulson said he felt it a good idea, that it was a tool which could be used by the prosecutor to bring about compliance. Kirby said she had reservations, saying she felt it was stepping to hard; she said she was uncomfortable with it. Merrifield said that by including such provision, the Planning and Zoning Commission wasn’t saying, in effect, that we want such penalties imposed, but that we want people to comply. He said the people of the county want people to comply. Paulus called for a show of hands among members who favored the idea; four said yes, two no. Reoch said he felt the potential penalties were too stiff. Staff corrected his earlier statement, saying that under the new public hearing guidelines, such change could be made and adopted if the hearing were reopened to public comment. Based on the previous conversation, Paulus reopened the hearing to public testimony, calling for testimony in favor of the application. Swenson stated he felt it was a good plan by adding the $300 per day violation provision, saying the jail time was normally suspended. Walt Kirby, Moyie Springs, said he had talked two three people that day, all of whom said that the ordinance, as currently written, has no teeth; each told him they tried to obey the law while neighbors didn’t. He said people are furiously upset and the Planning and Zoning Commission is getting a lot of bad press because of lack of enforcement. He said he felt it was a very good idea. Paulus called for comment from those uncommitted, there was none. He called for comment from those opposed, there was none. There being no further public comment, Paulus closed the hearing to public testimony and called for continued discussion among members. Paulson said that $300 per day sounds high, but it is a maximum, not a fixed fine. He said that such fine would prompt people to come into compliance by giving the prosecutor leverage not to prosecute, but to bring about compliance. Standley stated she felt it important to stick to time frames established. Reoch asked the administrative process for notification of violations, staff said that the current process is, when the administrator has cause to believe a violation has occurred, the owner is sent a certified letter and given ten days to respond and a solution worked out, the person in violation can explain why no violation exists or agree to resolution. If resolution is not made, a recommendation is sent to commissioners that further action be taken by the prosecutor. Weland stated that under the current proposal, the same notification and opportunity to resolve the violation remain, but if no response is given or if the violation is not corrected, the zoning administrator would have authority to investigate and issue a citation. If the infraction is upheld by the courts, staff said, and the violation not corrected, the person in violation would again be contacted by the zoning administrator by certified mail and given ten days to respond with a plan to correct the violation within a 90 day time frame. If there was still no response or attempt to correct the violation, recommendation for further action would go to county commissioners. Staff stated that under the current proposal, by use of infractions, the cases would be adjudicated before reaching the prosecutor; if the judge ruled in favor of the defendant on the citation, no violation would be deemed to exist. Reoch agreed that seemed adequate and showed the intent was not to penalize, but bring about compliance. Paulson asked for discussion of Chapter 5, Section 5, saying he had concern over the definition of “upgrades” to electrical service; he asked if replacing a meter would be considered an upgrade. Paulus noted that upgrades initiated by the electrical utility would not be considered upgrades, only upgrades initiated by the property owner. Weland stated that the language used was based on provisions adopted by Bonner County, he stated he had spoken with a Bonner County planner, who stated that they’d been using this provision since 1984 and adopted ordinance provisions after Northern Lights stopped requiring certificates as a courtesy about three years ago and had never been challenged. Epstein raised question on Chapter 11, noting again that the word “mitigation” should be “mediation,” and asking why the appeals provision preceded the mediation provision; staff stated that this was an oversight and concurred that mediation should precede appeals. Epstein stated he didn’t feel the zoning administrator should mediate because of his role in the applications process; Luedtke said that because the zoning administrator has the most extensive knowledge of the ordinance and the issues of an application, there would be few in better position to mediate. She stated she hoped the zoning administrator would have the best interests of the county in mind. Paulus stated that he has never worked with a zoning administrator who was biased, and said he felt that any one of them would have been able to handle mediation fairly. Weland stated that he asked Jerry Mason if a zoning administrator could mediate and had been told that it would be a very good idea, but that provisions should be included to give the parties a choice. Paulson stated that the current proposal provides that choice. Epstein stated that he felt the home based business provision of the ordinance made it too easy for people to establish businesses without preserving the underlying zone district. There being no further discussion, Epstein made motion to table the application for further review; the motion died for lack of a second. Merrifield made motion to adopt the changes as discussed and to forward the application to the board of county commissioners with a recommendation of approval; Paulson seconded. Epstein voted, “Nay,” all other members voted, “Aye,” and the motion carried.
5. Paulus opened administrative review of SUP 99-04 by Gene and Arlene Sloan, doing business as Paradise Valley Inn, staff stated that the Sloans’ had a buyer interested in purchasing the property, but wanted to know their options in relocating portions of the approved site plan. Because the proposal reduces rather than increases the intensity of the use, addressed the most major concerns raised at public hearing and because it could potentially reduce the acreage currently encompassed, staff said it was his opinion that such voluntary request could be granted by administrative action and recommended allowing staff to draft a letter to that effect for review by members. Members concurred and staff was directed to draft the letter.
6. There being no further business before the board, Luedtke made motion to adjourn, Reoch seconded and the motion carried unanimously. Meeting adjourned at 7 p.m.