Boundary County Planning and Zoning Commission

MINUTES

February 16, 2006

Members present: Tom Hollingsworth, Doug Reoch, John Kellogg, Barry Davis, Delton Amoth, Rod Barcklay. Staff present: Mike Weland. Member absent, Toby Schnuerle.

1. Co-chairman Hollingsworth opened the meeting at 5:35 p.m., introduced the members and called for reading of the January minutes. Reoch made motion to waive reading and approve the minutes as presented, Kellogg seconded and the motion carried unanimously.
2. Hollingsworth called for election of chair and co-chair and called for nominations for chair. Kellogg nominated Hollingsworth, Amoth seconded and the nomination carried unanimously. Hollingsworth called for nominations for co-chair. Davis nominated Barcklay, who said he wasn’t really interested and the nomination died for lack of second. Barcklay nominated Reoch, Kellogg seconded and the nomination carried unanimously, making Hollingsworth chair and Reoch co-chair.
3. Hollingsworth announced the public hearings before the commission and read the procedure.
4. Hollingsworth opened public hearing on VAR 0601 by Backcountry Development Inc. and Bill Burg, representing the applicants, presented the opening statement on their behalf. He stated that the parcels on which the variance was sought totaled 123.76 acres zoned agriculture/forestry, and the reason for seeking the variance was to allow clustering of structures to allow 12 lots on parcels not less than five acres in size. He presented a map depicting a preliminary sketch of the proposal should it be allowed to proceed through grant of variance. He state the proposal would not increase the allowed density of 12 dwelling units, but would allow those units to be clustered and areas of steep slope and along Snow Creek to be set aside as non-buildable areas to preserve open space and to protect the watershed and against erosion damage in the steeper areas. He stated that retaining the 10-acre established parcel size could encroach into these sensitive areas. He stated that the proposal meets criteria of the comprehensive plan in that it protects slopes potentially subject to slide, and promotes and encourages the best use of the land and its resources. He stated that legal access is provided through access agreement with the U.S. Forest Service and that electricity would be provided by Northern Lights on the existing easement. He stated that a variance was the appropriate application because the steep hills and the creek, and stated that due to these factors, the property was not suited to established uses, and that grant of variance would not be injurious to surrounding property owners or constitute a grant of special privilege. Hollingsworth asked members if any had conflict of interest, none did. Discussion was held regarding the easement, and it was established that the interior easement was 30’ and that the applicants had been working with the Forest Service to meet road standard requirements. Davis asked the applicant if it was possible without a variance to locate 12 home sites, the applicant stated that it would be possible, but the lots would have to be created to fit those parcels, and that their request would allow the same density while providing more benefit. Reoch asked about the application’s request to create 14 lots, Burg said that was not what was being requested as the applicants realize that exceeds the density allowed in the zone. Hollingsworth called for staff report and Weland read a letter received late from Phil Allegretti into the record. Hollingsworth called for public testimony from those in favor of the application, there was none. He called for testimony from those uncommitted on the proposal. Bob DelGrosso, Deep Creek, stated that without details as to what was being proposed, no one could make an informed decision. Staff explained that should the variance be granted, a second application to proceed with the subdivision would be required, and that application would be required to meet any conditions established by the variance to be granted. Richard Armstrong, Moyie Springs, stated he was familiar with the area and said he was concerned over the availability of water and sewer. Hollingsworth called for testimony from those opposed to the application. Jacob Epstein, Copeland, stated that he felt this was an improper use of a variance and that the parcels had already been divided into 20-acre lots, and thereby could meet the intended use within the zone district. He stated that in acquiring the land, the applicants knew what they were getting, and that he could see no reason they can’t use the land as the zone district intended. He stated that the application was basically a way of amending the zoning through variance, and a back door to creating a subdivision, which would set a bad precedent. Clarence Jones, Naples, stated that last year the citizens of Boundary County were up in arms regarding splitting property below minimum parcel size. He questioned the applicant’s assessment of the comprehensive plan, pointing out that residential development should locate near existing development for orderly expansion, and be designed to minimize cost to taxpayers. He stated that this proposal would add to those costs through road maintenance, school buses, emergency response and solid waste. He encouraged the commission to stick to the zoning laws and said granting the variance would grant privilege and bring no benefit to the public. Tim Patton, Naples, asked if the applicant knew of the slopes prior to purchase, and said there was no grading or drainage plan. Examining the map provided by the applicant, he said he could see at most six potential sites suitable for development. He stated that the use of “buzz words,” including the term clustering, were not based on the actual application of the terms. He stated that this area was in a grizzly recovery zone and had been designated critical habitat and foresaw increased human/grizzly interaction. Kennon McClintock, Moyie Springs, stated that this area was very steep and had been heavily logged. He stated that the soils were very erosive and that two slides have occurred in the area in the past ten years. He stated that the access was not just a Forest Service road, but that logging companies shared the cost of maintenance. He concurred that the area was grizzly habitat, and added that it was also critical big game habitat for elk, deer and moose. Patrice Mills, Naples, stated that she was under the impression that the county was under a moratorium pending completion of the comprehensive plan review. She said it would be best to stick to the underlying zoning, and that the commission be careful when allowing exceptions. She said she was concerned over water, road maintenance, utilities and the impact to wildlife. Robert Noel, Snow Creek, said the potential addition of 12 families would impact the school bus drivers, and asked if the roads would be maintained to allow school bus access, to include sufficient turn-arounds. Mark Gores, and adjacent property owner, said the best use of the land would be to trade it to the Forest Service. He asked about the availability of power, and stated that in winter the road was a sheet of ice. There being no further comment, the applicant was invited to rebut. Burg stated that the owners of the property had the right to develop in accordance with the law, and reiterated that special circumstances of the property warranted a variance and that clustering the 12 dwellings allowed would not be detrimental to the public welfare. He stated such clustering would have no adverse impact on roads as it did not increase the overall density. He stated that by right, 12 homes were allowed, the question asked in the application merely regarded where those homes would be sited. He stated the property would be marketed as recreation property and stated that the public had assurance of the retention of the open areas by virtue of the final plat. He stated the open spaces would be owned by the homeowners association, and that the area leading to the stream would remain open to public access. He asked if they could still develop without the variance and answered yes, that the applicants could create 12 parcels of 10 acres in size, but the cost would be loss of the proposed open space and the potential erosion issue. He stated that the concern that the variance was an attempt to rezone would be valid if the applicants were seeking to increase the allowed density, but said that was not the case. Regarding grizzly and big game habitat, he said the retention of open space provided benefit to the alternative of spreading the homes on ten acre parcels. Discussion was held on rules in the agreement easement that allowed the Forest Service to revoke the agreement, and the applicant stated the Forest Service would have to have a legally valid reason to invoke the clause. There being no further public testimony, Hollingsworth closed the hearing to public comment and called for discussion among members. Barcklay said he couldn’t believe the area was zoned for 10 acre parcel sizes, saying it should have been increased to 20 or 40 acres. He stated he was concerned over availability of water as the area was nearly solid granite. He stated that granting such a variance would constitute pushing development well ahead of where it was suitable. Kellogg stated that fire was a huge issue, recalling the Myrtle Creek Fire. He stated that with the slope, there would be little protection for any type of development should fire occur. Davis stated that the applicant should be able to develop according to the law, and said that if the law allows 12 parcels, he had no problem with that. He said he could see no valid reason to grant a variance. Reoch said the idea of recreational property was good, but that the zoning called for a 10-acre minimum parcel size. Kellogg stated he was generally opposed to granting variances based on topography, saying that doing so opens every hill and mountain in the county to potential development. There being no further discussion, Hollingsworth called for a motion. Barcklay made motion to deny application VAR 0601 on the grounds that the minimum parcel size in the zone district is 10-acres, and that failure to grant the variance would not deny the applicant their right to develop the property in accordance with existing law. Reoch seconded, and the motion carried unanimously.
5. Hollingsworth opened public hearing on application SUB LP 0601 by Clarence Ansley, and asked if any member had conflict of interest. None did. Steve Moyer, representing the applicant, stated that the area in question was southwest of Three Mile on County Road 30A, and that the applicant proposed to develop a 39-acre parcel into 30 lots of approximately 1.3 acres each. He described the access, and stated that the applicant has been working with road and bridge to bring the roads to county standard for their potential adoption into the county road system. He stated that Three Mile Water had provided a can-serve letter and that the applicant would upgrade the system to assure adequate supply. He stated that North Bench Fire had a station within 1 ½ mile, that the property was located near U.S. 95 with sufficient access and with two miles of Bonners Ferry, that there were three subdivisions in the immediate area. He stated utilities were available and would be brought to each lot, and stated that restrictive covenants would be incorporated to retain aesthetics. Doug asked what type road surface was proposed, Moyer stated that the county road was chip sealed and the interior roads in the proposed subdivision would be the same. Kellogg asked how much road was planned, Ansley said about 2,600-feet. Staff reported that Chuck Anselmo of Panhandle Health had called earlier to clarify that when he conducted the perk tests, the applicant was considering 20 parcels. He stated that test holes had been bored throughout the parcel, and that he saw no problem with adequate septic for 30 lots. Hollingsworth called for public testimony from those in favor. Realtor Joe Farrell, North Bench, stated that this was an excellent location for such a development, that it was visible from US 95, all services were there, covenants would provide protection from unsightliness and that everything proposed met county specifications. He stated the development would be a benefit to the community. Speaking uncommitted, Don Jordan, representing the airport, said this was located in a flyover area and requested that there be deed disclosure required to inform potential buyers of this fact. Staff informed members that county commissioners had adopted an airport overlay, and that any construction within the proposed subdivision would be subject to that overlay. Jacob Epstein, Copeland, said that the proposal met all the standards and criteria, but asked if it would be possible to set aside a green belt or require landscaping to soften the impact, saying such amenities would also enhance the development. Tim Patton, Naples, said he would like to see the comprehensive plan review completed before any further development was allowed, but knew that wouldn’t happen. He said he’d read studies indicating that a minimum of five acres was required per septic system to prevent over saturation, and  that he would like to see a better design applied. Hollingsworth called for comments opposed; there were none. On rebuttal, Moyer stated that protective covenants would be applied to stipulate aesthetic standards, and that in working with Anselmo, the importance of replacement drainfields in case of failure was recognized and factored in. Barcklay asked if a green belt could be incorporated; Moyer stated that existing trees would be retained, though most of the parcel is currently an open field. Kellogg asked if the applicant would build out the houses or whether individual lots would be sold and developed by the buyer, Moyer stated that individual lots would be sold. Kellogg noted that while 30 homes were possible, some buyers would purchase more than one lot, which could reduce the overall number of homes. There being no further public testimony, Hollingsworth closed the hearing to public comment and called for discussion among members. Kellogg stated that the commission had recognized this area as a good area for increased development when it approved the zone map amendment, and said that it was a good location with adequate infrastructure. Hollingsworth stated that the applicant had done everything necessary to comply with county requirements. There being no further discussion, Hollingsworth called for a motion. Reoch made motion to forward to county commissioners a recommendation that the application be approved as presented based on the facts presented by staff, with the condition that the plat and deeds disclose the proximity of the Boundary County Airport. Davis seconded. Kellogg asked about a performance bond, and staff stated that under the provisions of Emergency Ordinance 2006-01, a development plan should also be required as a condition and that the commission had the authority to recommend a performance bond as well, and stated that determining the amount of that bond could be determined by Road and Bridge Superintendent Jeff Gutshall. Barcklay made motion to amend the original motion to add the requirement that a development plan be included as a condition, and that a performance bond in an amount to be determined by Road and Bridge Superintendent Jeff Gutshall be imposed to cover the cost of developing the interior road to county standards. Kellogg seconded and both motions carried unanimously, and the applicant was advised to develop a formal preliminary plat to present to county commissioners.
6. Reoch stated his appreciation for the contributions made by former chair Jim Paulus, who had served 12 years and was required to step down based on ordinance provisions, and stated that he felt Jim should receive formal thanks from the members of the planning and zoning commission. Discussion was held on ordering a plaque and organizing a dinner, and members agreed to make arrangements.
7. Don Jordan asked for a moment to speak, and thanked the members of the commission for the professional manner they carry out their duties. He said he testified in favor of an application presented in January, and he said he appreciated that the planning and zoning commission considered all aspects of the proposal and took action requiring the applicant to present better information.
8. There being no further business, the meeting adjourned at 7:25 p.m.