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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- There being no further discussion, Matt Cossalman
made motion to approve the application as presented; Matt Morgan
seconded and the motion carried unanimously.
- 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.
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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.