Minutes

Boundary County Planning and Zoning

October 19, 2006

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

Chairman Hollingsworth opened the meeting at 5:30 p.m., introduced members in attendance and called for reading of the September minutes. Kellogg made motion to waive reading and approve the minutes as mailed, McMahon seconded and the motion carried unanimously. Hollingsworth read the hearing procedure.
Hollingsworth re-opened public hearing on application SUP0510. Staff reported that the applicant had called earlier in the day stating he would not be in attendance. Staff stated that the additional information provided by the applicant did not provide sufficient information on which to consider a special use, and recommended the application again be tabled pending receipt of sufficient information. Kellogg made motion to table the application pending receipt of additional information, Negley seconded and the motion carried unanimously. Discussion was held on the application, and Mark Sheldon, Coeur d’Alene, asked if notification would be re-sent when the hearing is rescheduled. Staff stated he would do so. Jacob Epstein, Copeland, asked staff how he was able to accept the material if the application was incomplete; staff stated that the determination as to completeness of an application rested with the commission, and that the applicant had been advised what was required and elected to move forward as he had. Kellogg made motion that staff was not to re-schedule hearing on the application until it met the requirements of the ordinance. McMahon seconded and the motion carried unanimously.
Hollingsworth opened public hearing on application AM0606 by Dean Kerr. No member cited conflict of interest. Kerr stated that his desire was to divide his parcel into two 2 ½ acre parcels, saying that it was surrounded by roads on three sides as a result of recent subdivision, which devalued the property. Kerr defined the location of his property, saying that the Dirks/Winkleseth property, recently rezoned to rural residential, abutted the property to the north, and that the road being installed to serve a 40-acre subdivision to the west of the property passed along the north boundary of his property. He stated that the five acre parcel to the south was owned by Leland Erickson. Reoch asked the applicant why he wanted to divide the parcel, Kerr stated he plans to move due to the increased traffic, and stated that because of the new road and the traffic that would be on it, he was no longer able to enjoy the peace of his back yard, and that as a result of the new road, he had been advised by a Realtor that the parcel would better make two residential parcels. He stated that he planned to impose similar CCRs as imposed in the Winkleseth/Dirks subdivision, and that if approved, he would put in place deed restrictions to preclude further division. Hollingsworth opened the hearing to public testimony from those in favor of the proposal, there was none. He called for public comment from those uncommitted. Rosemary Garafola, County Road 21A, stated that the applicant had signed a petition in favor of the Dirks/Winkleseth subdivision, and said she was concerned that the county roads were not sufficient for increased density. She stated that by recent action, precedent had already been set that the density in that area would increase. Jim Graham, County Road 21C, stated that the commission had conditionally recommended approval of the Dirks/Winkleseth subdivision dependent on a traffic study, and he recommended that until an analysis is done, no further amendments to increase density in the area be granted. Staff clarified that the Dirks/Winkleseth subdivision was scheduled for hearing before County Commissioners and that no decision had been rendered. Hollingsworth called for testimony in opposition to the proposal, there was none. In rebuttal, the applicant clarified his reasoning for signing the petition. Barcklay stated that this was a hard decision, and said he was sympathetic for concerns expressed, but said this was growth occurring outward from a population center. He stated that planning must allow for growth. Hollingsworth closed the hearing to public testimony and called for discussion among members. Kellogg stated that he was concerned about granting a zone map amendment, stating that the board had no authority to stipulate conditions. He said that while he didn’t have objection to a division into 2 ½ acre lots, the rural residential zone district designation gave the applicant the right to divide the parcel into one acre parcels, and said he was concerned that the commission couldn’t establish meaningful conditions. Barcklay asked if a variance would be preferable, staff stated a variance decision had to be based on topography. Discussion was held on the topography. Staff read the variance provisions, and stated that if it was the determination of the board that topographical conditions warranted, a variance could be granted, concurring with Kellogg’s assessment that no conditions could be established with a zone map amendment. Staff stated that the application for amendment could be rejected if it was determined not to be in compliance with the comprehensive plan, and consideration could then be made as to a variance provided the hearing was reopened to public testimony as a substantial change would occur. McMahon made motion to disapprove the application for zone amendment as presented based on the fact that the roads are insufficient to accommodate the increased density and that septic services are not sufficient to accommodate rural residential density, and that consideration be given to qualification for variance, based on the topography and surrounding land uses, to allow division of the property into two parcels not less than 2 ½ acres in size, and that based on the substantial change, the hearing be reopened to public testimony. Reoch seconded and the motion carried unanimously. (Due to the precedence of this decision, a select transcript of the discussion made in rendering this decision is attached to these minutes.)
Hollingsworth opened the hearing to public testimony based on the change made and called for a statement from the applicant. Kerr stated he agreed that a variance was satisfactory. Hollingsworth called from testimony from those in favor, there was none. He called for testimony from those uncommitted. Rosemary Garafolo asked why the property couldn’t be zoned for 2 ½ acres and staff explained current zone districts, stating that during the comprehensive plan process, it was recognized that an intermediary designation between five and one acre density was needed, but it couldn’t be applied until it was adopted by ordinance. Hollingsworth called for testimony from those opposed. Jacob Epstein stated that he was intrigued by the ingenuity of the commission, and questioned whether the board could proceed without additional public notification and separate hearing. Staff stated that pursuant to Chapter 16, the board could in this case as the substantial change had the effect of reducing the impact of the original application. Staff stated that no separate notice was required as the legal assumption was that those who would likely have concern were already present, as the applicant had requested a zone map amendment which would have allowed density to increase to one home per acre while the matter of variance currently under consideration would reduce that density to one home per 2 ½ acres. He said that had the commission made a change which would have increased the proposed density, separate notification and public hearing would be required. There was no rebuttal from the applicant and Hollingsworth called for discussion among members. Davis stated that this was an area in which development was going to occur and that it was a logical location for growth. Kellogg stated that he preferred 2 ½ acres to one acre because the area can’t handle one-acre density, and stated that the board was about compromise. He stated that he found the action of the commission reasonable based on the shape of the parcel and the uses around it. Reoch made motion to approve a variance allowing the parcel to be divided into two 2 ½ acre parcels, Behrman seconded and the motion carried unanimously.
Hollingsworth opened public hearing on the proposed Road Standards Manual, stating that it was a well-written document that had been long needed. Staff stated that while the commission would not administer the document, it could have applications regarding land use planning, and used as an example how the standards could be referred to as apply to urban subdivisions. Hollingsworth called for testimony in favor. Road Superintendent Jeff Gutshall, Naples, stated that he’d written the manual with Sewell Engineering, and stated that the standards were consistent with counties throughout Idaho, and that the geometry was safety related. He stated that the manual sets standards for roads to be brought into the county maintenance system, and said the question it addresses is who pays when new roads are brought into the system. He stated that 99% of new road construction is due to development, usually subdivisions. He stated that one mile of road costs about $1/4-million to build to a suitable standard and that maintenance thereafter is relatively inexpensive. He stated that by requiring roads to be built to that standard at the beginning removes the burden of that expense from the taxpayer. Jim Graham, County Road 21C, described his work on the transportation committee in the comprehensive plan review, and stated that if Proposition 2 passed, all the work would be for naught. He stated that maintaining safe road standards was a cornerstone of land use planning, saying that some areas shouldn’t be developed because of road safety. He stated that establishing those standards would naturally limit development. Carol Graham concurred that the transportation component was a key to the comprehensive plan in establishing density, and she stated roads should get first consideration. She stated that establishing standards will form the basis for those decisions. No one spoke uncommitted or in opposition. Hollingsworth closed the hearing to public testimony and called for discussion among members. Barcklay said he’s been on the commission for four years, and that there hasn’t been a subdivision application considered in that time where he hasn’t asked if road standards are needed. Kellogg stated that he hadn’t had the time to thoroughly read the standards, and asked if they addressed approaches. Gutshall said they did. Barcklay made motion to forward a recommendation to County Commissioners that the Road Standards Manual be adopted as presented. Negley seconded and the motion carried, with four members voting “aye” and three abstaining due to lack of sufficient review.
Hollingsworth announced he would not be at the November meeting and that co-chair Reoch would preside.
Discussion was held on the process of considering area of impact proposals.
There being no further business before the commission, Kellogg made motion to adjourn, Reoch seconded and the motion carried unanimously. The meeting adjourned at 7:10 p.m.

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Select transcript: AM0606:

In response to Kellogg’s question regarding imposing restrictions when amending the zone district:

WELAND: YOU’RE CORRECT, IN A ZONE MAP AMENDMENT, LEGALLY SPEAKING, I DO NOT THINK YOU CAN IMPOSE ANY CONDITIONS OR RESTRICTIONS BECAUSE ONCE YOU CHANGE THAT ZONE DISTRICT DESIGNATION YOU ARE ALLOWING ANYTHING WITHIN THAT ZONE DISTRICT DESIGNATION THAT IS OKAY; PERMITTED, CONDITIONAL, SPECIAL OR ANY OTHER CONDITION OF THAT. IN THE WINKLESETH CASE AND IN THE CASE BEFORE US, WE HAD OFFERS FROM THE APPLICANT MAKING AN AGREEMENT WHICH WAS USED TO DO THAT (RESTRICT MINIMUM PARCEL SIZE) WHICH WAS USED AS A BASIS FOR ACCEPTANCE. LEGALLY SPEAKING, I DON’T THINK YOU CAN HOLD THEM TO THAT, ESPECIALLY IN LIGHT OF THE FACT THAT BOTH OF THOSE INDIVDUALS, IN THEIR AGREEMENT ARE … WITH A ZONE MAP AMENDMENT, THEY CAN CREATE THREE PARCELS AT ONE TIME, PROVIDED THEY MEET THE MINIMUM LOT SIZE REQUIREMENT AS A SIMPLE SUBDIVISION, WHICH MEANS IT’S ADMINISTRATIVE, THEY COME TO ME. THE ONLY THING THE BOARD CAN RELY ON IN THESE TYPE OF AGREEMENTS IS THAT AS ADMINISTRATOR, I WILL LOOK AT THE DEED AND INSURE THERE IS THAT RESTRICTION IMPOSED. UNDER THESE CASES, THEY IMPOSE A COMPLETE SET OF COVENANTS, CONDITIONS AND RESTRICTIONS, SO I CAN VERIFY THAT WHEN THEY COME TO MY OFFICE WITH THE SIMPLE SUBDIVISION APPLICATION, THAT THE DEED BEARS THAT RESTRICTION, THAT THEY ARE GOING TO COMPLY WITH THOSE CC&RS, AND IF THEY DO NOT, THEN I WILL ENFORCE THE P&Z COMMISSION’S WILL THAT THAT NOT BE ALLOWED.

KELLOGG: LET’S SAY YOU’RE NOT IN THIS POSITION, 15 YEARS DOWN THE ROAD, IS THERE GOING TO BE DOCUMENTATION IN THE FILE ENOUGH TO KNOW THAT THESE ARE RESTRICTIONS WITHIN THAT ZONE?

WELAND: YOU’RE NOT RESTRICTING THAT ZONE. YOU’RE TRUSTING ON THE WORD OF THE APPLICANT. WHAT I’M TRYING TO CONVEY IS THAT WHEN THEY CREATE THE SUBDIVISION, THEY ARE GOING TO HAVE TO RECORD THE INSTRUMENTS OF CONVEYANCE TO DO THAT. UNLESS THOSE INSTRUMENTS OF CONVEYANCE INVOKE THE PROMISE THAT THEY’VE MADE, IT’S GOING TO LEAVE IT WIDE OPEN. IF, ON THOSE INSTRUMENTS OF CONVEYANCE, THEY IMPOSE THOSE COVENANTS, CONDITIONS AND RESTRICTIONS, THAT WILL FOLLOW THAT DEED IN PERPITUITY, OR UNTIL A COURT OVERTURNS IT FOR SOME REASON.

KELLOGG: WELL, BASED ON THAT INFORMATION, I HAVE A REAL HARD TIME GOING AHEAD AND AMENDING THE ZONING … SO RATHER THAN OPENING THAT DOOR … I UNDERSTAND WHAT THE APPLICANT’S TRYING TO DO HERE AND I’M NOT GOING TO ARGUE WITH THE VALIDITY OF IT, BUT I DO HAVE RESERVATION ABOUT AMENDMENT TO THE ZONE BASED ON THAT ONE ACRE MINIMUM LOT SIZE …

(DISCUSSION HELD ON PARCEL CONFIGURATION AND SURROUNDING USES.)

WELAND: (READ CHAPTER 9, VARIANCE REQUIREMENTS) BASED ON THOSE AND WHAT MR. BARCKLAY WAS SAYING ABOUT THE LENGTH OF THE PROPERTY, THE SURROUNDING USES OF THE PROPERTY, I BELIEVE THERE COULD BE JUSTIFICATION FOUND TO GRANT A VARIANCE.

HOLLINGSWORTH: HE HAS APPLIED FOR A ZONE MAP AMENDMENT, CAN WE CONSIDER A VARIANCE?

WELAND: BECAUSE THE ZONE AMENDMENT IS A HIGHER LEVEL, AND I REALIZE THAT THERE IS NOTHING IN HERE THAT SETS A PRECEDENT ON THIS BECAUSE IT’S THE FIRST TIME IT’S HAPPENED, BUT I WOULD SUBMIT THAT BECAUSE THE APPLICATION THAT HE APPLIED FOR ESTABLISHES A HIGHER, MORE DENSE USE, WHICH WOULD ALLOW FIVE RESIDENCES PER THE FIVE ACRE PARCEL AND HE’S ONLY REQUESTING A TWO AND A HALF (TWO RESIDENCES ON FIVE ACRES), AND BECAUSE IF IT’S YOUR DECISION THAT THE SPECIFICATIONS OF A VARIANCE DO APPLY, I WOULD THINK YOU COULD DOWNGRADE THAT, AND GRANT HIM EXACTLY WHAT HE’S SEEKING WITHOUT GRANTING THE ZONE MAP AMENDMENT WITH THE SPECIFICATION THAT HE ONLY SPLIT IT INTO TWO TWO AND A HALF ACRE PARCELS … IT COULD BE CHANGED TO A VARIANCE, GRANTING A LESSER IMPACTIVE APPLICATION.

HOLLINGSWORTH: WE HAVE ALL THESE POSSIBILITIES, AND AS A BOARD, WE CERTAINLY SHOULD HAVE A LEGAL RIGHT TO MAKE DECISIONS BASED ON THE VARIOUS POSSIBILITIES.

WELAND: THE REASON I THINK IT WOULD STAND UP IF IT WERE CHALLENGED; A ZONE MAP AMENDMENT IS A TWO HEARING PROCESS, EVERYBODY WAS NOTIFIED THAT HE WAS IN HERE FOR A ZONE MAP AMENDMENT, WHICH IS A HIGHER AND MORE DENSE USE, SO THE PEOPLE THAT HAVE AN INTEREST ATTENDED THIS MEETING UNDER THE IMPRESSION THAT HE WAS GOING TO BE ALLOWED TO SPLIT DOWN INTO ONE ACRE PARCELS, WHICH IS WHAT THAT ZONE DISTRICT DESIGNATION DOES ALLOW. BY FAILING TO GRANT THAT AND BY STIPULATING THAT IT’S A VARIANCE, AND YOU HAVE THE AUTHORITY AS THE PLANNING AND ZONING COMMISSION TO APPROVE OR DENY A VARIANCE, SO IF YOU DENY A VARIANCE THIS EVENING, THE APPLICANT STILL HAS THE OPTION, IF THAT IS NOT SUFFICIENT TO HIS NEEDS, HE CAN FILE AN APPEAL AND STILL GO TO A SECOND PUBLIC HEARING BEFORE THE COUNTY COMMISSIONERS, REQUESTING THAT IT BE CONSIDERED AS A ZONE MAP AMENDMENT.

HOLLINGSWORTH: I SUGGEST WE DISCUSS THE POSSIBILITY OF A VARIANCE. THAT WAY, AT LEAST IT WOULD CONTROL WHAT EXACTLY CAN BE DONE WITH THE PROPERTY, WHEREAS IF IT WAS ZONE AMENDED, THEN WE LOSE ALL CONTROL.

(DISCUSSION HELD ON PARCEL SIZE; ONE ACRE VS. 2 ½: POTENTIAL FUTURE ZONING.)

HOLLINGSWORTH: A VARIANCE WOULD BE SOMETHING THAT AT LEAST WE AS A BOARD CAN DETERMINE THE FUTURE, OR AT LEAST THE NEAR FUTURE, FOR THIS PROPERTY.

DAVIS: HOW PERMANENT IS A VARIANCE?

WELAND: THE VARIANCE STAYS THERE FOR THE LIFE OF THE USE. AS LONG AS HE DIVIDES IT INTO TWO TWO AND A HALF ACRE PARCELS PURSUANT TO THAT, UNTIL THE UNDERLYING ZONING CHANGES, UH, IF SOMEBODY BOUGHT IT TEN YEARS DOWN THE ROAD AND THE UNDERLYING ZONING HADN’T CHANGED, THEY COULD NOT DIVIDE ANY SMALLER THAN THAT. THEY COULD CONJOIN THE TWO TO MAKE IT COMPLY AND THEN THEY WOULDN’T BE ABLE TO SPLIT IT BACK WITHOUT GOING THROUGH A VARIANCE PROCEDURE. TO CLARIFY A LITTLE ABOUT THE PROCEDURE, AS I SEE IT, I WOULD THINK YOU WOULD FIRST HAVE TO DENY THE ZONE MAP AMENDMENT, I THINK THERE HAS TO BE A MOTION THAT IT BE DENIED BUT THAT IT DOES QUALIFY FOR A VARIANCE, AND THAT THE VARIANCE WOULD STIPULATE THAT NO PARCEL WOULD BE DIVIDED TO LESS THAN TWO AND ONE HALF ACRES IN SIZE. (DISCUSSION HELD ON PROPERTY VALUATION, ALTERATION IN VALUE AND USE AS A RESULT OF RECENT DEVELOPMENT).

KELLOGG: WHAT DID YOU SAY A MINUTE AGO MIKE? CAN YOU RESTATE THAT ABOUT, THAT AS A BOARD, WE NEED TO DENY …

WELAND: TO DETERMINE THAT IT DOES NOT QUALIFY FOR A ZONE MAP AMENDMENT. BASED ON WHAT I’VE HEARD, THE ROADS ARE NOT SUFFICIENT TO ACCOMMODATE A ONE ACRE DENSITY, WHICH WOULD BE SUFFICIENT FOR DENYING THAT APPLICATION. HOWEVER, MAKING A DETERMINATION THAT IT DOES QUALIFY FOR A VARIANCE BECAUSE OF THE SHAPE AND LAY OF THE LAND AND SURROUNDING USES. AND THEN, IF THE MOTION WERE TO CARRY, THAT WOULD BE A FINAL DECISION, THE VARIANCE COULD BE GRANTED AND HE COULD SPLIT IT INTO TWO, TWO AND A HALF ACRE PARCELS WITHOUT CHANGING THE UNDERLYING ZONE DISTRICT … JUST MORE FODDER FOR YOU TO CONSIDER, THROUGH THE COMPREHENSIVE PLAN PROCESS, EVEN THOUGH IT’S NOT GOING TO BE IMPOSED UNTIL WE GO THROUGH THE ZONE ORDINANCE AMENDMENTS, BASED ON THE COMP PLAN, YOU HAVE ESTABLISHED A TWO AND A HALF ACRE ZONE DISTRICT, SO YOU’RE GOING TO BE ABLE TO GO FROM A FIVE ACRE TO A TWO AND A HALF ACRE TO A ONE ACRE … IF THIS AREA WERE REZONED TO THAT TWO AND A HALF ACRES, BOTH THE PARCELS CREATED BY VARIANCE WOULD BE COMPLIANT WITH THE ZONE DISTRICT DESIGNATION.

(MCMAHON MADE MOTION TO DISAPPROVE THE ZONE MAP AMENDMENT AND CONSIDER APPLICATION AS A VARIANCE … DISCUSSION HELD ON CONTENT OF MOTION … BASED ON DISCUSSION, STAFF ASKED TO READ BACK MOTION)

WELAND: MOTION MADE TO DISAPPROVE THE ZONE MAP AMENDMENT DUE TO THE INSUFFICIENCY OF ROAD TO ACCOMMODATE A DENSITY OF ONE HOME PER ACRE, UNSUITABILITY OF SEPTIC AS IT (AREA) IS RELIANT ON PRIVATE SEPTIC (SYSTEMS), HOWEVER, THE REQUEST DOES QUALIFY FOR A VARIANCE BASED ON THE TOPOGRAPHY AND SURROUNDING USES …

FURTHER DISCUSSION HELD ON MOTION AND PROCEDURE, PARTICULARLY NEED TO RE-NOTICE AND SET NEW PUBLIC HEARING.

WELAND: I CONCUR THIS IS A SUBSTANTIAL CHANGE TO THE APPLICATION, SO WHAT I WOULD RECOMMEND, OR SUGGEST THE MOTION MIGHT BE, TO DISAPPROVE THE ZONE AMENDMENT AS PRESENTED BASED ON THE INSUFFICIENCY OF ROADS AND THE INAVAILABILITY OF PRIVATE SEPTIC TO HANDLE A ONE ACRE DENSITY AS PROPOSED; HOWEVER, THE REQUEST COULD QUALIFY FOR A VARIANCE BASED ON THE TOPOGRAPHY AND SURROUNDING USES TO ALLOW A DIVISION NO LESS THAN TWO AND A HALF ACRES. SO THE MOTION WOULD BE TO DISAPPROVE AND, LET’S SEE, TO REOPEN FOR PUBLIC TESTIMONY IN ORDER TO GRANT A VARIANCE. AND THEN WE WOULD GO THROUGH THE PUBLIC HEARING PROCESS AGAIN, PEOPLE WOULD AGAIN HAVE THE OPPORTUNITY TO SPEAK, AND THEN WE CAN CLOSE THE HEARING TO PUBLIC TESTIMONY AND DISCUSS GRANTING A VARIANCE.

REOCH: WHAT ABOUT THE PUBLIC BEING NOTIFIED?

WELAND: THE PUBLIC WAS INFORMED THAT THERE WAS GOING TO BE AN APPLICATION FOR AMENDING THE ZONE ORDINANCE (MAP), WHICH WOULD HAVE ALLOWED A DENSITY OF ONE HOME PER ACRE, THIS IS SIGNIFICANTLY REDUCING THAT IMPACT, SO ANYBODY WHO WOULD BE AFFECTED SHOULD BE HERE TONIGHT.

MCMAHON MOVED AS READ, REOCH SECONDED AND MOTION CARRIED UNANIMOUSLY … HEARING REOPENED TO PUBLIC TESTIMONY.

(IN RESPONSE TO JACOB EPSTEIN’S OPPOSITION REGARDING ALTERING THE APPLICATION AND LACK OF ADDITIONAL PUBLIC HEARING.)

WELAND: THE REASON I RAISED THE POSSIBILITY WAS BECAUSE OF MR. BARCKLAY’S COMMENTS REGARDING THE QUESTION, WOULD THIS QUALIFY AS A VARIANCE? BASED ON WHAT HE SAID, BECAUSE OF THE SHAPE OF THE PARCEL AND THE SURROUNDING USES, WHY WOULD THIS NOT QUALIFY AS A VARIANCE RATHER THAN AS A ZONE MAP AMENDMENT. IF THE ZONE MAP AMENDMENT WERE GRANTED, HE COULD LEGALLY BREAK IT DOWN INTO FIVE PIECES …

EPSTEIN: BUT NO COMPLAINT WAS RAISED BY THE APPLICANT OF THE SUITABILITY OF EITHER THE PARCEL THAT EXISTS OR THE PARCEL THAT WOULD RESULT WITH RESPECT TO BUILDING RESIDENCES UPON THE PROPERTY WHAT THE ZONING SAYS, OR ALLOWS. THERE IS ABSOLUTELY NO REASON FOR A VARIANCE …

WELAND: THAT’S WHAT THE P&Z COMMISSION HAS TO DECIDE.

EPSTEIN: THAT YOU’RE EVEN TRYING IT, THAT’S NOT A FAIR USE OF THE VARIANCE.

WELAND: THAT’S FOR THE BOARD TO DECIDE. IF IT MEETS THE CRITERIA, IN THEIR DETERMINATION …

HOLLINGSWORTH: THAT’S WHY THERE’S A BOARD. NOW, WE COULD TURN THIS DOWN, WE COULD OKAY WHAT HE WANTED ORIGINALLY, AND WE’D HAVE OUR OWN MAJOR PROBLEMS, WE’D BE RIGHT BACK AND I THINK THE NEIGHBORS WOULD BE SCREAMING BLOODY MURDER … WHAT WE’RE TRYING TO DO AS A BOARD IS TO REACH A CENTERLINE SO THAT THE LOTS STAY, POSSIBLY, ABOUT WHERE THEY’RE GOING TO STAY ONCE THE COMPREHENSIVE PLAN GOES INTO EFFECT. AND WE, AS A BOARD, HAVE A RIGHT TO MAKE DECISIONS. MAYBE SOMETIMES WE’RE GOING TO MAKE THE WRONG DECISIONS LEGALLY, BUT UNTIL THAT TIME, WE HAVE THE RIGHT, AS A BOARD, TO DISCUSS AND TO DECIDE WHAT WE’RE GOING TO DO. NOW IF SOMEONE NEXT WEEK SAYS WE DID SOMETHING ILLEGAL, FINE, THEN WE ANSWER TO THAT, BUT UP UNTIL THAT TIME, THAT’S WHY WE’RE HERE. WE’RE APPOINTED BY THE COUNTY COMMISSIONERS TO ACT ON THESE PROPOSALS, AND WE ARE ACTING ON THIS PROPOSAL … (HEARING CLOSED) NOW WHAT WE’RE DISCUSSING IS A VARIANCE ON THIS PROPERTY, SO THERE’LL BE TWO HOUSES, ONE THAT’S ALREADY EXISTING AND ONE ON TWO AND A HALF ACRES. …

(DISCUSSION HELD ON NEED TO SCHEDULE ADDITIONAL PUBLIC HEARING.)

WELAND: THE LEGAL BASIS FOR MY RECOMMENDATION; THERE HAS BEEN CASE LAW ESTABLISHED. MR. EPSTEIN IS RIGHT, IF THE APPLICANT HAD COME IN REQUESTING A VARIANCE TO HAVE THIS SPLIT INTO TWO AND A HALF, AND THE DECISION OF THE BOARD WOULD HAVE BEEN, “NAH, THIS FITS A ZONE MAP AMENDMENT, WE’LL MAKE IT ONE ACRE,” IT WOULD HAVE GONE TO PUBLIC HEARING BECAUSE YOU ARE INCREASING THE DENSITY, YOU ARE INCREASING THE IMPACT. IN THIS CASE, IT’S THE ASSUMPTION UNDER LAW THAT THE PEOPLE IN ATTENDANCE IN THIS AUDIENCE ARE PARTICIPATING THAT THE REQUEST IS TO ALLOW A HIGHER USE, A ONE ACRE DENSITY. YOU HAVE, BY MOTION, REFUSED THAT, YOU HAVE STATED AND MADE THE MOTION THAT POSSIBLY IT WILL FIT THE DEFINITION OF A VARIANCE THAT WILL BE 2 ½ … YOU ARE REDUCING THE IMPACT TO THE SURROUNDING PROPERTY OWNERS. THE ASSUMPTION IS THAT EVERYBODY WHO IS HERE, WHO IS INTERESTED, IS HERE BASED ON THE ONE ACRE MINIMUM. BECAUSE WE REOPENED THE PUBLIC HEARING, THE ASSUMPTION IS THAT EVERYONE WHO WOULD BE AFFECTED ADVERSELY IS ALREADY HERE. YOU’VE DECREASED THE DENSITY, SO YOU’VE DECREASED THE IMPACT. SO BY REOPENING PUBLIC HEARING AND TAKING THAT ADDITIONAL COMMENT, EVERYBODY WHO IS AFFECTED SHOULD BE HERE AND BE ABLE TO SPEAK TO IT.