NOT OFFICIAL UNTIL APPROVED

 

Minutes

Boundary County Planning and Zoning Commission

June 18, 2009

 

Members present: Jake Negley, Doug Reoch, Henry McMahon, Steve Shelman, Matt Cossalman, Matt Morgan. Members absent: Bruce Behrman, Rod Barcklay, Jan Christenson. Staff present: Mike Weland

 

  1. Chairman Reoch opened the meeting at 5:35 p.m. and called for reading of the April minutes. McMahon made motion to waive reading and adopt as presented, Negley seconded and the motion carried with three members voting “aye” and Shelman abstaining as he had not been in attendance at that meeting. Prior to opening public hearings, Reoch asked if the order of the agenda could be reversed to allow hearing of application 09-019 at the outset as it appeared that hearing would be brief; members concurred and the published agenda was reversed.
  2. Reoch called on staff to read the procedure and opened public hearing on application 09-019. No member cited conflict of interest or ex-parte contact.
    1. Applicant Mike Davis stated that he wished to expand Iron Mike’s Gym with a 16-foot extension to make room for equipment and furniture, but said that in building the existing structure, he surveyed the site himself and placed the building closer to the airport property line than he intended. He said that because of the shape of the parcel, building off the back was the only feasible direction for the expansion and the most cost effective. He said that if approved, the extension would require a rear setback of eight-feet rather than the mandated 20. McMahon asked about surrounding structures and properties,  Cossalman asked if any buildings were adjacent; Davis stated that the airport owned the property along the line he was requesting the variance and that the nearest building to the project was Precision Helicopters, which was about 200-yards to the south. McMahon asked about the height of the addition, Davis said there would be no increase in height as the structure would be a continuation down along the pitch of the roof.
    2. Staff report was read and discussion was held over what constitutes a grant of special privilege. Staff stated that the term was taken from Idaho Code and was open to interpretation but that he considered that if the applicant were granted the variance and another property owner in the same zone district and facing similar circumstances were to apply for a variance and be denied, it would be considered that approval of the initial application would be considered a grant of special privilege. Davis stated that he felt variables did play a role, to include adjacent uses, which might result in differing outcomes. Staff stated that while new ordinances were not yet in place, the new Comprehensive Plan identified the parcel for commercial zoning, and said that the proposed new ordinance called for reducing setback requirements in that zone from 20-feet to five, as it was realized that a 20-foot rear setback in a commercial zone district was excessive. He said that if the new ordinance were in effect, there would be no need for a variance hearing.
    3. Reoch opened the hearing to public testimony and called for comment in favor. Steve Tanner, Meadow Creek, stated that he was in favor of approving the application. There was no additional public comment, uncommitted nor opposed.
    4. In closing, Davis thanked members for considering his application. Shelman asked if the property line were fenced; Davis said there was a partial fence on the east and south boundaries of the property.
    5. Reoch closed the hearing to public testimony and called for discussion among members. Morgan stated that his only concern regarded the airport, and said that since the airport manager had been notified and there had been no comment, that concern was addressed. Shelman stated that he saw no reason to deny approval. McMahon, asking if he could speak as a member of the airport board, stated that the FAA required notification of construction within the airport overlay and discussed those requirements; he stated that the proposed addition did not pose a safety issue and that he saw no problems with airport interference.
    6. There being no further discussion, Matt Cossalman made motion to approve the application as presented; Matt Morgan seconded and the motion carried unanimously.
  3. Reoch opened public hearing on application 09-013 and asked if there were any members with conflict of interest, staff stated that as the application was legislative, affecting all property owners in the county, conflict issues did not arise. Terry Capurso requested that he be allowed to be heard at the earliest time possible, Reoch assured him he would be called upon.
    1. Because the application was promulgated by the county, staff gave the opening statement, stating that the proposed amendment was made at the request of the county treasurer in the wake of numerous partitions, consolidations and conveyances of property within the county that were made without payment of property taxes, resulting in excessive confusion over who owed taxes on what parcels. He said that in some cases, purchasers of property who assumed that taxes had been paid faced payment not only of back taxes on the property they purchased, but on additional property as well, and faced the risk of foreclosure. He said that, to his knowledge, Boundary County was one of few, if any other Idaho counties that allowed division of property without requiring that taxes be brought up to date. He said that based on her request, County Commissioners tasked him with developing an amendment that would address the issue. After development of the amendment and filing the application, staff said that he realized that he had failed to address another ordinance clause that would render the amendment ineffective; Chapter 15, Section 1D6, which exempts from subdivision requirements the partition of lands in which all parcels are 20-acres or larger. Staff said that removing that section as an exemption and including it as a simple subdivision would resolve that issue. He recommended that the wording of the proposed amendment be changed as follows:

                                                               i.      Delete Chapter 15, Section 1D6 (Exemptions): “Any division of land in which all lots or parcels created have legal access and are not less than 20-acres or a 1/32nd aliquot division of a section.”

                                                             ii.      Amend Chapter 15, Section 2A to read: “Simple Subdivision: Applications for subdivisions of three or fewer parcels which require no change in zone district designation in order to be in compliance with the provisions of this ordinance, and when no shared infrastructure or improvements must be constructed to meet the requirements of Boundary County or other agencies, or any division of land in which all lots or parcels created have legal access and are not less than 20-acres or a 1/32nd aliquot division of a section, and with acknowledgement by the county treasurer or authorized assign that property taxes on the parcel being divided are current and paid for the year. Applications for simple subdivision shall be made on forms provided for the zoning administrator, who shall have the authority, without need of public hearing, to approve or deny such applications based solely on the standards established by this ordinance and the provisions of the zone district in which the subdivision is proposed. Applications shall include either a record of survey depicting the entire parcel being divided, depicting new property lines, roads and easements accessing each parcel, and the size, in acres, of each parcel created; or a legal description of each parcel proposed, to include easements and the size, in acres, of each parcel to be created.”

    1. Reoch opened the hearing to public testimony, calling for comment from those in favor, none, and uncommitted, none. He called for testimony from those opposed. Terry Capurso, Rim Drive, challenged the legality of the public notice requirement as a result of the postponement of the hearing, originally scheduled for the May meeting but postponed due to the absence of staff at that meeting. He stated that he had the past four issues of the Bonners Ferry Herald, and that no notice giving the date, time and location of the new hearing date had been published. He asked staff if notification had been made. Staff stated that he had sent out press releases giving the details of the new hearing date, but did not know if the Herald had published that release. He said he had also posted the date, time and location of the re-scheduled hearing on the county website and had posted the agenda outside the door of the Planning Office in late May. He said that he assumed members had discussed tabling the hearing in open session at the May hearing, and Reoch said that the discussion had been held and it was agreed the hearing would be tabled until the next regular meeting, though no announcement was made to those in attendance, nor had the date, time and location been stated. Staff stated that the May hearing had been properly noticed, with both a legal publication and a display ad, as evidenced by affidavits in the file, and that the assumption was that those who had attended the May hearing had heard that the hearing would be tabled. He stated that while this was the first time a hearing had been tabled due to the absence of staff, several earlier hearings had been tabled due to lack of quorum, and said that he had earlier been advised by legal counsel that re-publication of legal notice of those hearings were not necessary, though effort should be made to inform the public of such changes by all means available short of purchasing advertising. Staff stated that while there might be a question of flaw in legal notice, the scheduled hearing was advisory only, and that the flaw would be effectively remedied through the notification process to take place prior to final hearing by County Commissioners, the deciding body. Capurso stated that he disagreed, citing Idaho Code 67-6509, and stating that if the hearing were allowed to continue, he would appeal to the county prosecutor. He stated that he had wasted his time attending the May hearing, but did not mind another delay so as to allow proper legal notice.
    2. Reoch closed the hearing to public testimony for the purpose of discussing how to proceed based on the allegation of improper legal notice. Shelman stated that tabling the hearing would allow incorporation of the changes recommended by staff. Cossalman said that if the legal notification requirements were flawed in public opinion, they were flawed, and said he felt it best to table the hearing to allow proper legal notice be published.
    3. There being no further discussion, Cossalman made motion to table the public hearing on application 09-013 to allow amendments as discussed and to re-publish legal notice as required by Idaho Code. Morgan seconded and the motion carried unanimously.
  1. Cossalman made motion that all legislative matters coming before the planning and zoning commission be legally re-noticed any time a hearing is changed or tabled. McMahon seconded and the motion carried unanimously. Staff recommended that such language be incorporated in the new zoning ordinance.
  2. There being no further business before the commission, McMahon made motion to adjourn, Negley seconded and the motion carried unanimously. The meeting adjourned at 6:45 p.m.