Boundary County Planning and Zoning Commission

MINUTES

August 17, 2006

Members present: Tom Hollingsworth, Doug Reoch, Jake Negley, Rod Barcklay, Henry McMahon. Members absent: Toby Schnuerle, Barry Davis, John Kellogg. Staff present: Mike Weland.

1. Hollingsworth opened the meeting and called for reading and approval of the July 20 minutes and the August 3 special meeting minutes. Staff read into the record the concern raised by Jacob Epstein regarding a comment allegedly made by member Toby Schnuerle at the August 3 meeting and the transcript he’d prepared of Schnuerle’s comments. Epstein stated the comment he was referring to was not included in that transcript, and requested time to review the recorded comments. Reoch made motion to waive reading of the July 20 and August 3 minutes and approve as prepared; Barcklay seconded and the motion carried unanimously.
2. Hollingsworth reviewed the hearing procedure, then reopened hearing on the Pemp hardship exemption. Reoch read the staff analysis into the record, and staff clarified that it was only a staff analysis and not a legal opinion. Hollingsworth allowed the applicant to make comment; Don Pemp agreed that the ordinance was in affect when he purchased the property and that the county did not cause the hardship, but stated that any time a law is passed it can create hardship, as it had in his case. It was clarified that the commission was making a recommendation to the board and not a final decision. Hollingsworth called for discussion among members. Barcklay stated that the commission was faced with a tough decision, and said that allowing this exemption would open the door to everyone facing a medical crisis, and that the county wasn’t responsible for those afflictions. He stated that he did not see how Mr. Pemp’s circumstance qualified as a hardship. McMahon reviewed the processes Mr. Pemp attempted before seeking the hardship exemption, Mr. Pemp stated he’d looked at a variance, but was advised there were no grounds for granting a variance, leaving only the hardship exemption. McMahon concurred that the circumstance did not constitute hardship as defined. Hollingsworth said the question that needed to be asked was whether granting the application would be detrimental to surrounding property owners, and it was concluded it would. Reoch said the ordinance is very basic on a variance; did the shape, size and topography of the parcel make it unsuitable for use? He stated that it was not the county’s fault the parcel was created. He said that granting the hardship would not alleviate the hardship because the applicant was planning to sell the parcel, not to make personal use of it. McMahon made motion to forward to commissioners a recommendation that the Pemp hardship exemption application be forwarded to county commissioners with a recommendation of disapproval; Barcklay seconded and the motion carried unanimously.
3. Hollingsworth reopened public hearing on application AM 0602 by Kevin Dirks and Alan Winkleseth. Dirks presented several maps and a preliminary sketch showing plans for subdivision, and showing how the plans for the parcel in question fit with the overall plan. He stated that the parcel, if amendment were approved, would be divided into three building lots, none less than three acres in size. Dirks presented a map showing sub-sized parcels in the immediate area, and said that indicated that the area was growing. He stated that the location adjoined city area of impact, and that the application fostered orderly expansion from the city outward, and that their plan maintained a lower residential density, based on the topography and their desire to create a development that fit the land and would benefit the community. He stated that Road & Bridge superintendent Jeff Gutshall told him that County Road 21A was on the list for improvement. Barcklay asked about water; Dirks stated that a six-inch main off the Cabinet Mountain water system would be installed. He stated Northern Lights would provide power and that septic would be by private septic system, and that Panhandle Health had inspected and determined there was sufficient land area and suitable soils for septic. Reoch asked why they applicant couldn’t abide by the current zoning and divide into two parcels. Dirks stated that the topography and tree cover naturally lent itself to three building lots, and that the parcels would offer good views while maintaining a sense of seclusion. Hollingsworth opened the hearing for public comment in favor. Alan Winkleseth, applicant, stated that he intended to build his own house on one of the parcels. Hollingsworth called for testimony from those uncommitted; there was none. He called for testimony from those opposed:
   1. Rosemary Garofolo stated that during the hearings on the area of impact, both the city and county planning and zoning commissions as well as nearly everyone who testified opposed anything less than five acres in that area, but that county commissioners didn’t listen nor even discuss retaining a five acre minimum. She said once the zoning was changed, regardless of what the applicants proposed, the land could be further divided with no control. Staff explained the subdivision plat process, that further reduction could be precluded by CCRs and that even without them, amending a plat once recorded could not be done without going through the hearing process. Hollingsworth asked Dirks if CCRs were planned, Dirks said they would, and would include provisions precluding further division. Garofolo cited concerns over the roads.
   2. Andy Armes, Addy, said he was concerned the commission was considering the application favorably based on the number of sub-size parcels already in existence, saying that just because they existed did not warrant allowing higher density.
   3. Raina Lowmeyer, County Road 21A, said that the area there had changed considerably over the years, being rezoned from 10-acre minimums to fives. She stated that the zoning should be retained as is, citing unsuitable roads, lack of adequate road signage, and danger to children. She stated that in the immediate area, there were at least 16 children, who liked to walk and ride bicycles. She stated they would be endangered by increased density and increased traffic. She stated roads and services should be improved prior to amending the zone.
   4. Cassandra Phillips, an adjoining property owner, said she agreed with all said previously, and requested that Dirks keep to two parcels.

On rebuttal, Dirks stated that people were initially scared of what could happen as a result of rezone, but when they see what they are actually proposing, they like the idea. He stated roads would be upgraded as the need arises. He stated that the proposal would be developed over time, averaging one to two homes per year. He stated that while the area had once been suitable for farming, that was no longer the case due to the growth that has occurred. There being no further comment, Hollingsworth closed the hearing to public testimony and called for discussion among members. Reoch stated that this was another tough decision; while the neighbors were adamant about retaining the five-acre minimum, the proposal fit. Barcklay said he was sympathetic with neighbors, but said this was the logical direction the city would grow. Hollingsworth said if you look at areas where city growth is uncontrolled, you find rows of houses three feet apart. With this proposal, he said, the lots will stay large and not be developed into high urban densities. Barcklay asked if an approval would set a precedent, opening the door to other applications. Reoch asked the applicant why, except for profit, the proposal wouldn’t work with two lots instead of three, maintaining current zoning. Dirks stated that because of the topography, it’s naturally suited for three. He said utilities are there, it adjoins the city limits and that if you were planning for growth, this is where it will occur. He stated there’s a fire station within ¾-mile, and that all the amenities are in place to accommodate the growth. He said the property could be split into two fives, but it wouldn’t be the best use of the land. He stated he planned to build his home here, too. Winkleseth stated that development was motivated by economics, but if their intent was to maximize economic gain, they could have created many more lots. He said their goal was to build a development that enhanced the area and made the best use of the land, and that deed restrictions or covenants were planned to restrict further division, as they wanted to protect the development. There being no further discussion, Reoch made motion to forward to county commissioners a recommendation that Application AM0602 be approved with the condition that no parcel in the subject area be created smaller than three acres in size and subject to deed restriction precluding further reduction as agreed during hearing. McMahon seconded and the motion carried unanimously.

4.      A 10-minute recess was called and the meeting resumed. Hollingsworth opened public hearing on application SUB 0603 by Matt Myers. Myers stated that the land proposed for subdivision was part of the family estate and they wanted to maximize its potential. He stated that farming the land could not support the family. He stated that most of the interest expressed in the property was from recreational users who wanted to have a place to put a hunting cabin, but stated that he wanted to retain all options; he stated some would likely choose to build year-around homes there. Negley asked about the availability of water, Myers said there were a few wells in the area, but water quality was marginal. Hollingsworth called for testimony in favor of the application; there was none. He called for comment uncommitted. Victor Amoth stated he’s farmed the valley for 40 years, and has land that would be perfect for a subdivision, but said he didn’t want to subdivide because the land should remain agricultural. He stated that having housing adjoining farm land affected the ability to farm, as residents in those homes would complain about farming and win, he cited Rathrdum and field burning as an example. He stated this tended to put farms out of business, and that the housing boom has reached its peak. Andy Armes, Addy, said he’d participated in the comprehensive plan review, and thought the 160 acre minimum lot size proposed for prime agriculture was questionable, but stated that this is the first application to be heard. He stated be sympathizes with the owner, but recommended delaying the application until the new comprehensive plan and ordinance were in place. Bob DelGrosso, Deep Creek, said it the application were approved under the current comprehensive plan, two things should be considered; the possible failure of the dikes and whether the lots would be buildable should they fail, and what requirements FEMA and the Army Corps would place on construction. Hollingsworth called for comment from those opposed. Jacob Epstein, Copeland, stated that under the current comprehensive plan, agriculture is defined as a mainstay, and it encouraged agricultural enterprise. He stated that this was a residential development near the most productive farmland in the county. He cited Appendix I of the comprehensive plan, Page 1; “There exists a delicate balance between the social and economic contributions which agriculture makes to the community. It is imperative that any proposed land use changes consider not only the economic impact, but also the effects on the rural lifestyle that has evolved over time and which no monetary value can be placed.”  He raised the question why this was being processed as a long plat when there was no dedication of lands or roads; staff stated that all subdivisions had to be approved by county commissioners and the method in the ordinance was improper. Victor Amoth asked about the effect on Drainage District 4, saying that the people who buy in the subdivision would have to help repair the dikes. There being no further comment, Hollingsworth called for rebuttal. Myers stated that 160 acres was to much land for a small farm, and that farmers should have the right to sell. He stated that he’d like to be able to retain options, and while he anticipated some of the lots would be developed for residential use, he said some would be developed for recreational use. There being no further comment, Hollingsworth closed the hearing to public testimony and called for discussion among members. Barcklay stated he had serious concerns and felt the application should be tabled to address public safety issues. He stated that much of each proposed lot was behind the levy. He expressed concern over the perkability of the ground, the availability of water, ground water contamination from seepage, and FEMA requirements. He pointed out that during the recent flood event, 55 miles of levy were damaged and may fail. He stated that it was his belief that there should be no construction behind the levy at all, and said that approval could result in lawsuits against the county if someone were to build there and their home become damaged by flood. McMahon said he heard that Canadian officials would be raising the level of Kootenay Lake by three feet, which would affect the river level on the Kootenai. Reoch said he felt if the application were tabled, FEMA approval should be a stipulation. Staff said FEMA would not make the determination, and explained that because the area behind the dike is in an unnumbered zone, engineering studies would have to be done to determine base flood elevation prior to issuance of a zoning certificate. Staff stated that the area to the east of the dike was in the B Flood Zone, which did not require a base flood elevation study to build. Barcklay said he felt there should be a moratorium on development due to dike damage, and agreed with Amoth that farmers would be forced out by residential development. He stated he did not feel the application met the provisions of the comprehensive plan due to the deterioration of the dikes and erosion. He made motion to table the application based on public safety concerns to allow development of additional information as listed to be required of the applicant: 1. Certification from Panhandle Health that the lots proposed meet requirements for septic systems; 2. A letter from Road and Bridge assuring that Krause Road, formerly County Road 45A, provides adequate year-around access; 3: A determination on whether Flood Insurance is obtainable for development on the proposed lots; 4. Can serve letters from Northern Lights and other utilities. Reoch seconded and the motion carried unanimously.

5.      Hollingsworth opened public hearing on AM 0604 and staff report served as opening statement. Staff outlined the effects of the proposed amendments. Hollingsworth opened the hearing to public comment from those in favor of the application. Raina Lowmeyer, Paradise Valley, stated she was in favor of eliminating gift deed provisions. Cassandra Phillips concurred. Hollingsworth opened to testimony from those uncommitted. Jacob Epstein, Copeland, stated he was not sure if the proposed amendment truly achieved the objective of retaining minimum parcel size requirements, and questioned why the specific language on retaining minimum parcel size wasn’t included. Staff explained that his reference was the title to the emergency ordinance, and was not necessary for incorporation into the ordinance. Hollingsworth called for testimony from those opposed, there was none. There being no further comment, Hollingsworth closed the hearing to public testimony and called for discussion. There was none. Barcklay made motion to forward the amendment to county commissioners with a recommendation of approval as presented, Negley seconded and the motion carried unanimously.

6.      Discussion was held on member absence and it was agreed that when a member is absent for three consecutive meetings, except in the case of illness, staff would include on the agenda discussion as to whether or not to recommend to commissioners a member be removed for excessive absence.

7.      Discussion was held on conflict of interest. Staff was instructed to obtain the attorney general’s pamphlet and mail to members.

8.      There being no further business, the meeting adjourned at 8:50 p.m.