Boundary County Planning and Zoning Commission

MINUTES: December 15, 2011

Members present: John Moss, Marciavee Cossette, Steve Shelman, Ron Self, John Cranor, Bruce Behrman, Dan Studer. Members absent: Matt Cossalman (called and cited conflict of interest), Paul Shelton. Staff present: Mike Weland

1. Studer opened the meeting and introduced members. Because November minutes had not been mailed, reading of minutes was waived until January meeting.
2. Studer read the public hearing procedure and stated that two late letters, received from Rod Barcklay and the Army Corps of Engineers, would not be read into the record. He did not set a time limit on testimony, but requested those testifying try to avoid repetition. He asked members if any had conflict of interest or ex parte contact, none so stated.
1. Studer opened the hearing on application 11-061 to public testimony and called for an opening statement from the applicant. James Fox, 7102 N. Linden Road, Otis Orchards, said that Fox Enterprises consisted of himself, his sister and his brother and he described the proposed subdivision as being 30 lots all 2 ½ acres in size and larger, with 14 lots adjacent to an existing paved county road, 16 lots to be accessed by a private road built to county standards. John Marquette, JRS Surveying, stated that the proposal meets the requirements of the new zoning and subdivision ordinance. He said that 10 test holes had been dug and he provided a report from Panhandle Health showing that the soils were suitable for septic. He stated that the land did not lie within the 100 year floodplain.
2. Studer, going through sign in sheets, said the applicant and Marquette were the only two in favor of the application and that no one offered testimony uncommitted. He called for testimony from those opposed.

                                                               i.      John O’Connor, 199 Meadow Creek Road, said the application was a waste of prime agricultural farm land, and if approved, the county would lose considerably more than depicted. He said the project threatens the river and that the river threatens the project.

                                                             ii.      Charles McCrum, 7361 Blaine Street, said he was concerned that the septic systems will find their way into the Kootenai River and Kootenay Lake. He said he was concerned regarding flooding and the aesthetics; that this area offered one of the most dramatic vistas in the county which would be compromised if the application were approved.

                                                            iii.      Tim Patton, Naples, expressed concern over the flood plain, and said the cluster development ordinance shouldn’t allow urban sprawl. He stated that a court challenge against the ordinance was very likely. He said that septic would likely end up in the river, expressed concern regarding dike failure. He said that allowing the proposal was asking for trouble and that it would be irresponsible to allow clustered development.

                                                           iv.      Roger Morter, who lives in Oregon but owns property on Big Bend Road, said that the dikes of District 9 would have right of way through each of the parcels proposed, ranging from 100-to 200-feet in width which would require maintenance. He said that nothing in the application addresses this concern. He stated that the proposed development was a long way from services, including the hospital, ambulance and fire, which raises safety issues. He expressed concern regarding road access and the lack of turn lanes. He said that flood stage changes, and that allowing the proposal would, in effect, be allowing people to build in a flood zone. He expressed concerns regarding children playing in the river, raising safety issues. He said that approval of the application would be on a collision course with Idaho’s right to farm statutes, and will take away the ability to farm. He said there is an assumption that water will be available, but said the water in that area was not good. He stated that the ability to pass a perk test was dependent on what time of year the test was made, that it would likely not be deemed suitable in the spring when water is high. He said that P&Z is designed to plan, and said that putting 30 houses in the middle of farm country was not wise. He said you can’t farm the side of a mountain, but you could put houses there.

                                                             v.      John Figgins, 1636 Twenty Mile Road, expressed concern about the water table in the spring, and said that in most years, you’d be standing in it.

                                                           vi.      Jacob Epstein, 473 Maridel Lane, read Section 13.4.9 of the Comprehensive Plan. He said the staff analysis seems to contend that the application was in compliance with that provision, but that it isn’t. He said that only the valley is designated prime agriculture, and said there is much more land suitable for housing in the county than there is prime ag land. He asked P&Z to keep prime ag land undisturbed. He said this application is the introduction of a bad idea that sets precedent and conflicts with the primary reason for the zone, and said that approval will drive out agriculture.

                                                          vii.      Erik Olson, 362 Star Road, said he runs Olson Valley Ranch and said that approval of this application would threaten his livelihood, and likened this proposal to what happened in the Rathdrum Prairie, where farming has all but ended due to residential encroachment. He said that in 1948, the entire valley was under water, and said that such flooding remains possible despite the Libby Dam.

                                                        viii.      Don Jordan, 1281 Brown Creek Road, stated that the ordinance needed to be amended to save farms and to keep farming where farming is best.

                                                           ix.      Ed Atkins, 530 Wheeler Road, said he had a lot of the same concerns that had previously been expressed. He said he’s been farming in the valley for 25 years, and said he’s seen farms in the Three Mile and North Bench area lost due to residential development and resident’s complaints. He said those complaints cause farms to recede, and that ultimately, when you bring housing to farm ground, you invite conflict. He cited spraying and burning as two key issues on which the Idaho Department of Agriculture typically backs residents once they’re allowed to build. Studer asked him if there was an difference in drift between ground spraying and aerial, Atkins said drift was almost the same, but noise from aerial spraying was the biggest difference. He described the chemicals used, and said they have strong odors to let people know where they’ve been used, such as sulfur and copper sulfate. Behrman asked the typical width of dikes through the valley, Atkins said they range anywhere from 100 yards and narrower.

                                                             x.      Six other people signed sheets indicating opposition but who did not wish to testify.

3. There being no additional public comment, Studer called for the applicant’s closing statement. James Fox said that he appreciated the comments and letters that came in. He said that his grandfather bought that land in 1936, and that in 1939 Victor Amoth took over farming it. He said his family has been on the farm for many years. He stated that the Dike District 9 had been dissolved. He stated that in addition to this plat, he had two more pending. He said that farming was the lifeblood of the Amoth family. He said that since 1984, he’s studied areas of heavy residential areas immediately abutting farm lands, citing places in New York, New England and Europe, and he said there are ways to make it work with few conflicts thanks to cluster development. He said that along with title to property, 300 acres will be set aside where nothing else can be further divided or developed, it will be left as prime farmland forever. He said that, under our zoning, he could put one home per each 10 acres. He reiterated that the land was in a zone B flood plain. He said the lot sizes proposed conformed to the county standard for both septic and a well, and said that all 10 test holes previously tested were acceptable for septic disposal. He said that he understood the concerns over aesthetics, agreeing that the proposal would bring change. He said that Libby Dam has made a difference in the incidence of flooding, and while it was possible the dam could fail, it’s a remote possibility. As to the availability of public services, he said that people live all over the valley, that where they buy land is a matter of choice. He stated that he will work with Road and Bridge to address road safety issues. He stated that the critical argument is right to farm, which involves spraying pesticides and herbicides, dust and noise, he said it was important that farming continue. He said each deed will require that buyers give up their rights to sue against usual and regular farm and agriculture practices, that Fox Enterprises wants to make sure that farming continues. He said that he has attorney’s currently working on language to emulate existing projects where residential use and farming has proven to work. He said “we guarantee that the Amoths will be able to continue farming until the county changes the zoning, in perpetuity. He confirmed that the proposal represented a change, that this was beautiful country. He said that the Kootenai River is a navigable river, the second largest in the state, thus desirable for residential use. Studer asked Fox if he’d seen the written concerns from Road and Bridge, Fox said he’d reviewed them and that he has every expectation of meeting county requirements. Studer asked why he couldn’t increase the size of the lots, Fox said it was a matter of cost and value, that if he stayed with 10-acres, there would be no need to cluster, and in this situation, it makes better sense to cluster as it assured preserving the farmland in perpetuity. Studer called a 10 minute break. On return, rebuttal continued. Shelman asked who would be responsible to maintain the dikes, Fox stated that with the dissolution of Drainage District 9, it would be up to the individual property owners. By dissolution, he said the Army Corps had determined that those dikes were not necessary for flood control.
4. Bob Olson, Kootenai Valley Reclamation, was allowed to testify as an expert, and he said that there was no Corps statement that the dikes were not necessary, but left it up to the farmers to maintain and repair the dikes. He said the Corps very much wants to keep the diking system intact.
5. Studer asked if covenants have been prepared, Fox said they had not as he wanted to see what the concerns are and what the county would require. Studer asked if Fox was willing to consider the dikes, Fox said yes. Studer asked regarding the letter from Idaho Fish and Game, which speaks to retaining a riparian buffer along the river, Fox said he shared IDFG concerns. Studer asked Fox if he was aware of any setback requirements from dikes, Fox said he was not. Studer asked about threatened and endangered species and whether Fox had any intention of alerting potential buyers to these concerns, Fox said he had none. Moss asked Fox if he was willing to address P&Zs concerns in the CCRs, Fox said yes. He said he knows the proposal will cause problems, and that he was looking at being able to maintain existing agricultural use. He said he was looking for the county’s help in identifying concerns, and said the Fox Enterprises wants to accomplish its goals while maintaining community values and protecting farming. Discussion was held on enforcing CCRs, Fox stated that in his experience, home owners associations were ineffective, but said that CCRs let buyers know the restrictions, verified by their signature, and that if there was a violation, any affected person could use those CCRs as the basis of a lawsuit.
2. There being no further testimony, Studer closed the hearing to public comment and called for discussion among members, first reviewing the considerations outlined in the staff report. He concurred that the area to be restricted needed to be depicted on the final plat in addition to those lots proposed for residential use. Discussion was held of requiring the plat to depict the areas affected by the AE flood zone. Moss said that P&Z had to consider more than well and septic, he expressed concern regarding fire protection with so many people in such close proximity. Discussion was held regarding adverse impacts to adjoining land uses, especially the compatibility of residential use with farming. Moss said it was the commission’s duty to take that into consideration, that if the homeowner is permitted to establish the use, down the road the infringements will force the farmer to stop spraying, and it would be caused because the county allowed the use to be established. Cranor stated that the two uses were not compatible, and Moss concurred, saying that approving the plat would create an incompatible situation, and not taking into account the rights of the current property owners. He said he recognized the benefit of setting aside 300 acres, but said that if they allowed 30 to 40 families, it would eventually affect current use of the land. Studer called a break. When the meeting was re-convened, he asked for each member to give their concerns and comments.
1. Moss said he believed that Mr. Fox has the right to use his property, but approving the application would be putting third parties who would be buying the lots into the equation who could have views or needs that are incompatible with the current use of the land. He stated his concerns over the level of services available, saying he didn’t think they were adequate for the number of people.
2. Behrman said that it was apparent that the applicant wasn’t interested in being a steward of the land but that he was in it for money.
3. Cossette said she appreciated that 300 acres would be set aside, but that she was concerned about the dikes.
4. Self said that with the dikes, he was concerned there wouldn’t be room for wells, septic systems and a home.
5. Shelman said he didn’t think the application was designed so as to avoid adverse impact on surrounding uses and avoid impacting the dikes. He said he didn’t feel the application was appropriate.
6. Cranor said he’s concerned that what is proposed will place to mutually incompatible uses side by side; farms and home sites. He said that allowing residential use will adversely impact the current use, and said that the fluctuation of the river would cause inevitable problems with septic systems and wells. He expressed concern over maintenance of the dikes.
7. Studer said it was the duty of P&Z to ensure the future of Boundary County, not to introduce problems. He said he sees no way by which the applicant can mitigate the impact of high-density residential use where there would be families and pets so proximate to high-yield farming. He said he recognized the value of preserving 300 acres, but said that approving the application would introduce conflict.
3. There being no further discussion, Self made motion to recommend disapproval based on the aforementioned reasons, Moss seconded. Shelman asked to amend the motion to cite Section 11.7.2.3.1.4, Boundary County Zoning Ordinance, saying the proposal was not situated so as to avoid potentially hazardous areas, to wit the dikes, or sensitive areas. Self amended the motion. Studer called for a vote and the motion carried unanimously.
4. There being no further business before the commission, the meeting adjourned at 7 p.m.