Boundary County Planning and Zoning Commission


March 15, 2012

Members present: Ron Self, Steve Shelman, John Moss, Dan Studer, John Cranor, Matt Cossalman. Members absent: Bruce Behrman, Mariavee Cossette. Staff present: Mike Weland.

  1. Studer opened the meeting, introduced members. He called for reading of the February minutes. Shelman made motion to waive reading and approve as presented, Self seconded and the motion carried unanimously.

  2. Studer announced that, at the request of the applicant, the first agenda item; the Tungsten Holdings gravel pit, was tabled.

  3. Studer opened public hearing on applications 11-064/11-065 by Frank Wagstaff, and described the procedure. He announced that the letters received after deadline had been received, but would not be taken into consideration unless read into the record by the submitter.

  4. He called for conflict of interest or ex-parte contact. Cossalman stated that he had a conflict of interest and stepped down, joining the audience.

  5. Studer called for an opening statement from the applicant. James Fox, Spokane Valley, said he was representing the owner, stated that the application was to develop 77 lots along the Kootenai River for residential use in two phases. He said the land encompassed by the north phase did not lie in prime farm ground, but was treed. Phase II, Kootenai River South, was proposed on reclaimed grazing ground. He stated that roads accessing the development would be built to county private road standards, electricity would be brought to each lot. He said that of 1,425.26 acres, 1,218 would be restricted from future development and be reserved for farming. He said the proposal meets the objectives, preserving the best farm land in perpetuity. He read a portion of the proposed CCRs, under which buyers would waive their right to sue over normal agricultural practices; that the minimum floor elevation would be at 1,768.5. He said it was unfair to liken this proposal to what happened on the Rathdrum Prairie, as that area had been rezoned for higher density, this was not based on a rezone, but on clustering, where the prime farmland would be reserved. He stated that there were already many houses on the river. He stated that the covenants would require that buyers acknowledge that the property was outside the dike, and that they’d be responsible for erosion control along the river as established by the Army Corps of Engineers. He said that with people on the river bank, erosion problems would be curbed. He stated that he was working with Brockway Engineering, who are experts on flood plain development in Idaho, and that they were working with FEMA. As to water quality for ling and sturgeon, he cited the EPA finding that cattle grazing along a shore was more damaging than residential use. He said that Panhandle Health had approved each parcel for septic, and that there had been no seepage or flooding on these parcels, even in the high-water years. He said the proposal would preserve 94% of the existing farm land forever.

    1. Shelman asked for information on the dikes, Fox said the properties would be outside the dikes, but said the elevation was sufficient … that there had been no seepage or flooding. Shelman asked for comments regarding the report from Road and Bridge, Fox said the development would have roads better than the county. He said there are three ways to access the development and that he had no plans to improve Turner Hill Road. He said that most of the properties would be used for recreational purposes. He said that, as developers, they would provide roads and electricity, it would be up to the purchaser to provide septic and water. He said that flood insurance would not be available, so most financing would be non-conventional.

    2. Studer asked about the non-sue provision in the CCRs, Fox said he doesn’t know if it’s been tested, but it has been used.

    3. Discussion was held of the staff report and road and bridge report.

  6. Studer called for testimony from those in favor of the application.

    1. Steve Tanner, Meadow Creek Road, said he favors the use of private property, saying that the applicant has title to the property and he has the right to sell, that to say otherwise is socialism. He said that the roads will be improved if the land is developed with the increase in tax revenues.

    2. Phil Schnuerle said that the applicants were paying taxes on the property and the government’s trying to grab it, he said the Nature Conservancy and others were eating away private land.

  7. Studer called for testimony from those uncommitted, there was none.

  8. Studer called for testimony from those opposed.

    1. Jacob Epstein, Maridel Lane, said that the P&Z ordinance is not a socialist document, nor was the comp plan; he said that the objective of the prime agriculture zone district is to maintain agricultural use, to encourage uses complementary to that use and to avoid further fragmentation. As to the CCRs, he said lawyers were born everyday finding new ways to break them. He said that allowing residential use would raise contentions between potential homeowners and farmers. He said that the right thing to do is adhere to the zone, that houses could go into more places than there were to raise crops, and that residential use and farming were incompatible.

    2. Billie Krause, Krause Road, said she favors retaining farms and production. She said that leaving trees would prevent erosion, and that allowing residential use would remove the trees. She stated that she has a well on her property by the river, and that it has the hardest water, full of iron and other impurities. She said the water level constantly goes up and down. She said that sloughing was a problem that would be made worse on such small lots. She said the roads in that area were very difficult, not blaming the county, but soils and snow drifts made driving almost impossible at certain times of the year. She said that more traffic on those roads would create more problems. Studer asked if she had problems with septic, she said not since the dam went in.

    3. Rod Barcklay read his letter into the record.

    4. Eric Olsen, 362 Star Road, said he farms north of the proposed development, and while he said he supports property rights, he had to think of his own, and his self-preservation. He said he didn’t need additional problems from people who complain about what he does (farming). He said back-up from Kootenay Lake caused slack water seepage, and said the roads do flood.

    5. John O’Connor, Meadow Creek Road, said it was not good to allow homes in flood zones as there was no way to protect them, the wells or the septic systems. He said it was a bad idea to compromise farm ground, as this could badly damage the ability to farm.

    6. Pat Gardiner, Farm to Market Road, concurred with the prior comments and stated that flood insurance would not be available on the proposed lots. He said that the enforceability of the CCRs would be an issue, and said that if the county were to grant the application, they would be informing the public that the lots were suitable for building, which is not the case. He stated that approval would bring liability issues.

    7. Matt Cossalman, 1986 Highway 1, doubted the applicant’s assertion that grazing cattle were more detrimental on waterfront than people, saying that homeowners frequently used pesticides and other products that were safe for people but deadly to fish. He asked whether a person could actually sign away their right to legal review by signing CCRs, and asked what the rate of bank erosion was at the site. He stated that section required a storm water runoff plan, and said that as a volunteer firefighter, he said he knows that field burning next to new neighbors would cause conflict.

    8. Ted Atkins Jr., Wheeler Road, agreed with Tanner, but said he had a different perspective, that he had the right to keep using his lands. He said he farms Elk Mountain across the river, and said that burning would cause a problem for new residents not used to the agricultural lifestyle. He said that CCRs would not negate the legal restrictions placed on farmers. He said he is 20 miles from Creston, and when they smell smoke, he is shut down. He said the noise of irrigation from May through September was around the clock, that harvest ran around the clock. He said that the levees in District 16 were the only diking system currently approved by the Corps, and that spending hundreds of thousands of dollars rocking the dikes wouldn’t prevent undercutting. He stated that since it went in, Libby Dam has been overtopped several times, and that when that happened, the water was coming down the Kootenai unregulated. He expressed concern regarding drainfields, saying that Elk Mountain has a 60-unit housing complex built in 1995, and that they had to put in pressure fields, and were told by Panhandle Health that if they ever have to replace the system, they would be required to put in a treatment plant. Studer asked how a complaint in Canada could shut down his field burning, Atkins said that the Department of Agriculture had a person on site during burning operations, and as soon as a complaint was received, they shut him down. He said that in 25 years, he has seen flooding several times from seepage.

    9. Mike Ripatti, 3864 Highway 1, said his family owns land in that area. He said that despite CCRs, having residences in such close proximity to farming can change what’s accepted farming practice. As a local engineer, he said, he said that the dikes level at Bonners Ferry is 1,780 feet, and in 1961, flood water hit that level. He said there’s 20-feet of fluctuation on the river, and said that the fluctuation would require that any docks built jut far out. He said that the applicant’s idea to have each individual property owner riprap would create eddies that would cause problems upriver and down, and said that to be effective, it would all have to be riprapped at once. He recommended setting a minimum 1,000 foot river frontage requirement along the Kootenai River, saying that there are homes along the river, but that currently they are more than ¼ mile apart. He said that with the frontages proposed by these applications, there could be 1,900 lots on the Kootenai River from Canada to Deep Creek, which would intrude on the ability to farm and cause significant problems on the river.

    10. Jeff Pawnell said the water in the area is so bad it can’t be used, cited the concerns of Road & Bridge, and countered an earlier argument that additional development would bring in taxes to provide for roads, saying road and bridge doesn’t tax.

    11. Jeannie Robinson said the road was sufficient to handle the additional traffic, saying it was a farm road. She said that the proposed development would impact much more than the road, but schools, fire, police and ambulance.

  9. A ten minute recess was called. On re-adjournment, Studer called for rebuttal from the applicant. James Fox said the proposals would retain the use of the prime farm ground in the development in perpetuity, using just six-percent of the land for residential development. He said that clustered development was not a new concept, saying it had been used in Long Island, New York, for more than 70 years, and worked well, saying that the land set aside for farming is still in production. He said that without clustering, he could divide the entire holding into ten acre parcels, and the farms would be gone. He admitted that the roads weren’t ideal, but that they handled hundreds of semis hauling grain. He said that the Kootenai is not a wild river, it is navigable and recreational. He said that, according to the ordinance, the flood level could be established and conventional financing would be available. He said that the CCRs he proposed had been tested on the Ohio River and in the Tennessee Valley. He said that 2 ½ acre lots provided adequate room for septics, and that Panhandle Health had approved. He agreed that change is hard, but said his proposal would preserve 94% of the farm land encompassed in the proposal forever, and that if clustering wasn’t used, farming would go away forever. Discussion was held between members and the applicant regarding dikes, flood zones and wetland designation.

  10. There being no further testimony, Studer called for discussion among members.

    1. Moss said that a property owner has the right to do with property what they want, within limits, but said that if the property is a wetland, the ordinance says they can’t approve the application. He cited concerns regarding road issues.

    2. Self said that the FEMA maps showed the property as being in a flood zone.

    3. Shelman said there were a lot of valid concerns, but said that they had to go by the ordinance, and the wetland issue was cut and dried.

    4. Cranor said he agreed with those advocating property rights, but said the wetlands, the road issues, especially in the event of an emergency, and the issues of septic and water were concerns that couldn’t be overlooked.

    5. Studer read from the staff report regarding wetland and safety issues, saying that if the application were approved, a safe road would be required.

    6. Shelman reiterated that the ordinance was clear and they had no discretion, unless the area was removed from wetland classification, by the Army Corps, they had no choice but to deny the application.

  11. There being no further discussion, Self made motion to recommend that applications 11-064 and 11-065 be denied due to wetland designation. Moss seconded with the provision that other concerns raised by included in the motion. Self concurred and the motion carried unanimously.

  1. A five minute recess was called, and on re-adjourning, Studer opened public hearing on application 12-006 by Boundary County.

  1. Following a 5 minute recess Studer opened the public hearing for 12-006 Boundary County Zone Map Amendment.

  1. Studer opened the public hearing and explained the purpose of the hearing, ie. Boundary County Commissioners have put forward a proposal for Amending the Boundary County Zone Map on multiple locations on the Moyie River. The deciding body will be the County Commissioners; the Planning and Zoning Commission will forward a recommendation to the County Commissioners based on the letters received and public testimony given here.

  1. Studer asked Mike Weland to give a history on this application, and briefly go through the Staff Analysis. Mike provided some background on the area, and the reasons this has been brought forward by the commissioners.

  1. Studer opened the meeting for public comment.

  1. Those in favor of the Amendment:

  2. Dick Villelli, 533739 Highway 95. Dick, his sister and parents own property in this area, (Lanes). Even though his larger property would not be broken down, his sister and he own 11.3 acres he would like to split; it makes sense to have compliance with Comprehensive Plan. Dick requests all areas indicated in the amendment be rezoned Suburban.

  3. Steve Tanner: Steve said he was against zones, but this would allow more use of the land. He is in favor of this going down the entire river. He mentioned there are many ways to handle septic.

  4. Daniel Diess, read letter submitted March 6, 2012. His concerns are in regards to taxes, ability to sell his property; and bringing the Zone Map into compliance with the Comprehensive Plan Map.

  1. Neutral: none.

Opposed to the Amendment:

  1. Ken Lustig, letter submitted. The area by definition is not Suburban, i.e. it is further than 30 miles to population center. Roads are private and not maintained. Emergency vehicle access is not adequate, and a county road access should be resolved before splits occur. Leave this Ag/Forest or require preliminary plats to demonstrate assurance of road standards to meet county specs.

  2. Mr. Lustig read in the Duncan letter, on file.

  3. Don Jordan, concern over inadequate roads and development there. Don would only support the Amendment if areas outside platted areas are excluded from the proposal.

  4. Vic Cherven, Lanes Moyie River resident. Reiterated letter submitted. Area does not have a Suburban Zone infrastructure.

  1. Studer closed public testimony and began deliberation with the commission.

  1. Steve Shelman: The proposed solution doesn't fit the problem; it would be better to amend the Comp. Plan (to Ag./Forestry).

  2. Matt Cossalman: In favor of rejecting the amendment; the area is higher density but can be addressed through Cluster Development. If Suburban is enacted it will cause more restrictions on use of the land to the land owner. Uses of the land in this area is better suited to Ag./Forestry zone. Suburban areas are not equitably distributed; why are there some Suburban here, and not there. Matt would support Good Grief as Rural Community Commercial.

  3. Ron Self: It appears the county is trying to correct something that Cluster Development already can take care of.

  4. John Moss: John agrees with Mat’s comments and would recommend disapproval of the amendment.

  5. Dan Studer: Dan believes the Ordinance Map is fine, and that the Comprehensive Map should be changed. Also, the area should be looked at as a completely new zone specific to the river recreation that the land supports.

  6. Studer asked if the commission needed further discussion; the commission members indicated they had enough information.

  7. Studer requested a motion from the commission:

  8. Matt Cossalman: Motion to disapprove the amendment per the discussion above; the Suburban zone is inappropriate due to no Suburban infrastructure present; problems of road access, and safety especially with concern for emergency vehicle access .

  9. John Moss: Second the motion.

  10. No further discussion.

  11. Studer asked for the vote and the motion passed unanimously.

  12. No other items on the agenda, Studer closed the meeting.