Boundary County Planning and Zoning Commission


March 17, 2011


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


  1. Due to people still arriving and signing in, opening of the meeting was delayed. Studer called the meeting to order at 5:40 p.m., ensured all interested had signed in, and introduced members. After the introduction, Cranor, whose term begins April 1, rejoined the audience to observe.
  2. Studer asked for reading of the January minutes. Shelman made motion to waive reading and accept as presented, Cossalman seconded and the motion carried unanimously.
  3. Studer read hearing procedure, opened public hearing on application 11-005 and announced that the hearing would be conducted in two parts, with the zone map amendment to be considered first and, if a recommendation of approval was reached, followed by hearing on the conditional use permit application. No member cited conflict of interest. Studer described ex-parte contact, no member cited ex-parte contact.
  4. Studer opened the hearing to public comment on the application for zone map amendment and opened the floor to the applicant. Kevin McNally stated that he was there to correct a clerical error, saying the old zoning map was about a foot square and hard to read, and that District 2 Road was mistaken for the railroad line when establishing rural residential zoning based on his application in 1989. He stated that the entire area had been zoned agriculture/forestry before that amendment was approved. He stated that on the property in question, perhaps two acres were flat enough to build on; he said if the request were to have the property zoned rural residential today, it wouldn’t fit. He asked to have the zoning changed back to agriculture/forestry, what it should have been, correcting a mistake undiscovered for 23 years.
    1. Cossalman asked if the District 2 Road would support 57 houses, McNally said no, saying the land was straight up and down and offered no suitable building sites.
    2. Shelton asked if District 2 Road provided the only access, McNally said yes, and that the county-maintained portion ended at his property line.
  5. Studer called for public testimony in favor of the application.
    1. Paul Wells, 3622 District 2 Road, said that his property borders McNally’s, and that the access was a single lane gravel road. He said that to have 50 homes would require considerable upgrade of the road, and that providing necessary infrastructure would be a phenomenal task. He recommended the commission recommend approval.
    2. Joleene Ries, Spokane, said that she and her five brothers own property to the east of the McNally’s, and recommend approval.
    3. Mike Halford, 740 French Point Dr., stated that he lives above the McNally property and that he was in favor of the amendment. Shelman asked if he was familiar with the proposed pit site, Halford said he was, and that he could barely see the site from his home.
    4. Bill Michalk, 2692 District 2 Road, said his property is the dividing line between rural residential and ag/forestry. He said he was in favor of the amendment, having 1 ˝ mile of District 2 Road frontage. He said that if the request were denied, he’d consider asking that his land be rezoned so he could build 200 houses. He stated that it makes sense to keep the zoning map consistent, and that the land in question was not suitable for residential use.
    5. Mike Peterson, 3388 District 2 Road, said he lives one mile west of McNally’s property and concurred with earlier comments, saying the topography would not allow residential use.
    6. Bob Byars, 2946 District 2 Road, said the McNally property had slopes over 40-degrees and that you couldn’t build homes without blasting. He said the property should be ag/forestry. Cossalman asked the location of the nearest fire station, Byars said that was North Bench, several miles distant.
  6. Studer called for comment from those uncommitted on the proposal.
    1. Mark Brackebush, Olympia, WA, who owns property and is building at 642 French Point Drive, said that he read the applicant’s statement and said he supports improving the road, though he had mixed feeling about amending the zone map. He said that ag/for zoning would allow uses incompatible with residential use. He stated that the property wasn’t suitable for 40 or 50 houses. Shelman asked if he could see the site from his property, Brackebush said he was in direct line of site. Asked how far, Brackebush said about 1,000 feet.
  7. Studer called for testimony from those opposed.
    1. James Daniels, 493 Rim Drive, said that buying a home is most people’s largest investment, and in due diligence, looking at surrounding zoning was important. He said that zoning was a way to keep bad things out of your back yard, and that it was wrong to change the zoning.
    2. Terry Capurso, 548 Rim Dr., said that even if an error had been made, the property was zoned rural residential, and said that all the zoning to the north of the property was zoned for residential use.
    3. Donna Capurso, 548 Rim Dr., submitted a map showing that the 200+ acres owned by McNally to the east of the subject parcel was also zoned rural residential, per MLS. Shelman asked staff to clarify the zoning; Weland said that the property to the east was zoned ag/forestry, saying that the MLS often went by assessor’s records based on use rather than by actual zoning, and said that the two departments were completely separate.
    4. Thomas McGuire, 104 Bordeaux Ct., said that on a legal basis, the application should not be approved as the reason can’t be to correct an error, but must be done in conformance with the ordinance and state laws. He said the applicant made no effort to comply. He said that approving the application would constitute spot zoning, and that the application should be disapproved to avoid litigation. Cossalman asked for clarification, McGuire said that the applicant was responsible to show that the request was in compliance with the comprehensive plan. Shelman asked if he could see the McNally property from his, McGuire said that because of the trees, he could barely see the train. He said he could barely hear the train.
    5. LeRoy Austin, 26 Canterbury Ct., said he exercised due diligence when he purchased his home and had been assured that there would be nothing below but residential use. He asked what’s going to happen to their view if the uses changed. Self asked if there had been impact due to the railroad, Austin stated that there had been some sloughing on the upper side of the tracks.
  8. There being no further public testimony, Studer called for rebuttal. McNally said that the property is not zoned as it should be, saying that houses would be impossible to build, and that by denying the request would only serve to keep anything from happening on the property. He stated that he’d lived on the property for 34 years. Studer asked staff if the applicant had provided the necessary information, Weland listed the items required in an amendment application and that the applicant had provided all that was required. He stated that it was the duty of the planning and zoning commission to consider the facts and determine whether or not the application met the requirements of the comprehensive plan. Studer closed the hearing to public testimony and called for discussion, but was requested to allow further testimony.
    1. Dennis Lyons, 64 Windy Lane, said he’d purchased his property for the view and didn’t want to see a gravel pit.
    2. Thomas McGuire stated that there must be a showing that the proposed zoning meets the comprehensive plan and whether the uses available meet the comp plan.
  9. Studer closed the hearing to public testimony and called for discussion.
    1. Cossalman said that the considerations had to be infrastructure, surrounding uses and whether the requested zoning fit the comp plan. He read the purpose of the rural residential zone district and stated that the McNally property clearly did not meet the guidelines; he stated that the maps showed that the bench community was divided by the railroad from farmland below, and said the McNally property should be ag/for.
    2. Self said that based on the description provided in the original application to rezone, there was clearly an error at the time by the county.
    3. Weland stated that many had raised issues from the new comprehensive plan rather than the one in effect, and stated that the new comprehensive plan map recognized that this area was not suitable for high density residential use and designated this and surrounding properties as what would currently be ag/surburban or ag/for.
    4. Discussion was held on the impact on public services. It was determined that the fire station was a long way off. Shelton stated that the only public services provided to the property were phone and electricity, that there was no water or sewer. Self concurred, saying that the county road ended at the property. It was concluded that the applicant had provided all required information, that the nature proposed change is in compliance with the Boundary County Comprehensive Plan, that the proposed zoning is compatible with surrounding zone district designations, and that existing public services were not sufficient for rural residential zoning.
    5. Shelman said that in concept, this should have been an appeal rather than an amendment request, but said that an appeal was not feasible as there was a 20-day period from the decision during which to appeal. Because of the time that lapsed before the error was noted, he said, a zone map amendment was the proper venue.
    6. Self said that this was clearly a cartographer error and not the fault of the applicant.
  10. There being no further discussion, Studer called for a motion for a recommendation. Self made motion to forward to county commissioners a recommendation that the application for zone map amendment be approved, Behrman seconded and there was no discussion. Studer called for a show of hands of all in favor and the motion passed unanimously.
  11. Recess was called. Shelton left the meeting at 7 p.m. for a prior appointment.
  12. Studer called the meeting back to order and opened public hearing on the conditional use permit portion of application 11-005, calling for an opening statement by the applicant. McNally said that when the slide came, shot rock from this proposed pit was used to fill the railroad bed where the UP line was washed out. He stated that in the 13 years since, he has been running a gravel pit to widen his road. He stated that in those years, he’s widened about 75- to 80-feet of the road bed, and that he still had approximately 1,300 feet left to widen. He said that in 2009, Idaho changed their law, and determined that if you were going to sell rock, one needed an IDL permit. He said that he acquired that permit and filed a reclamation plan for the “River Road” project. He stated that he was also told by the county that he needed a permit, and that’s why he was here. He said that two years ago, the Tribe approached him regarding the river restoration project, and he thought that would be a good chance to sell rock. He stated that the tribe was already staging vegetative materials to be used in the restoration project. He stated that the project would use a lot of heavy equipment, and that his road is currently 12-feet wide and must be widened to accommodate the restoration. He stated that widening will take drilling and blasting, and that the Tribe’s engineers had been working on the widening project. He said he was told by the engineer that due to the low charges required to accomplish what was needed, neighbors would not hear the blasts. He said that the river project is scheduled to begin in August, and that the road will have to be widened prior to that. He said that once the project is done, he’ll be cut off from the river, and will have to drill two wells to provide water to his cattle and put up fencing. He said he hoped to make up that expense by selling rock that would be moved to widen the road. He said that he likes things the way they are now understands people don’t want to see change, but said the change is coming, and that over the next two years or more they would see considerable activity during the restoration project. He said the area from which rock is to be taken is relatively small, that there would be no crushing, and that noise will be incidental. He said that once the road is done, the project is done, that there will be no further activity. Self asked if engineering reports were available and about railroad stability. McNally said he didn’t have those reports, but that they were a long way from the railroad. He stated that vibration resulting from the road widening project would be small compared to that generated by 200-ton railroad cars going by. Studer asked how much blasting had occurred during the mudslide, McNally said they shot twice. Studer asked if there had been any complaints from the public, McNally said no. Studer asked how much blasting would be required for the road project, McNally said engineers estimated one or two shots. Cossette asked who his partners were in McNally Limited Partnership, he replied that it was his five brothers and sisters and his mother, that money made from the land supported the family. He said that over they years, they harvested and sold more than 15m board feet of timber. He said the last lot in the French Point subdivision sold three years ago. Cossalman asked how much rock would be needed for the river restoration project and McNally said he had no idea, that he had agreed to provide them access through his land with no guarantees. Moss clarified, saying that the road is going to have to go in and in the process, the rock has to go somewhere, and that if they don’t use his rock, they would have to bring it in from somewhere else, McNally said that summed it up. Shelman asked for clarification of the area labeled “pit” on photos submitted with the application, McNally said that it was the bare face area at the original point of entry in 1998. He was asked what would happen to the rock if he couldn’t sell, he said that it had to go somewhere. Some, he said, would be used to improve the road. Cossalman asked what size area was to be excavated, McNally estimated an area of about 1,500 feet long and 20-feet wide, with a 10-foot bench for stability. He stated that his IDL permit confined operations to a 2 ˝ acre area. Shelman asked if he’d had any comments from neighbors above, McNally said some can see the rod, but not the pit area. Moss asked for clarification of the pit area and whether it was part of the road, McNally said it was the middle of the road. Studer asked how much rock, McNally said it would be mostly cobble with some shot rock, but he couldn’t project the amount. Moss asked what the road would be once the project was done, McNally said it would be primarily a farm road.
  13. Studer called for staff report. Weland said that discussion on this project had been going on for a considerable time, and that McNally’s email response reminded him how the issue came up. He said that the project had been on-going since 1998, and that he’d never received a complaint until March, 2010, when another pit owner west of town complained unfair competition. He stated that until the Supreme Court ruling, a gravel pit could have been considered as a special use in any zone district, but that in response to the ruling, the ordinance had been amended to allow consideration only in ag/for. He said that the issue was one of semantics, that while no actual “gravel pit” was being proposed, because the applicant wanted to sell rock commercially, the term was the only one available to use, and that if the applicant didn’t sell the rock, no permit would be required to build a road.
  14. Studer opened the hearing to testimony from those in favor of the application.
    1. Paul Wells, 3622 District 2 Road and adjoining property owner, said he’s lived on his property for 40 years and has worked with Kevin and leased ground from him for raising hay and cattle. He said that because of the road, it was difficult to impossible to get equipment in for farming. He said that he spent many years in mining and blasting, and that he’s looked the ground over, and estimated that between 10,000 and 20,000 yards of rock could come out, but not much more than that. He said that building a road would open that area for agricultural use, and that such use would be much better than a 57-unit subdivision. He said that other people access their property through the McNally land over three miles of bad road. Cossalman asked about ground stability , Wells said most of the project would be free dig, and he said the small section that would need shot has good stability. Moss asked what he did in mining, Wells said he’d been blasting supervisor for many years and had probably moved a couple billion tons of rock.
    2. Robert Wells, 190 Wells St., said he owns property in the area and that Kevin failed to mention that the property was not “straight,” that the French’s formerly owned it, hence the name of the subdivision, and that the subdivision actually did sit on a point of the rock. He stated that the “pit” people referred to was basically a two-truck turnaround in the road.
    3. Bill Michalk, 2692 District 2 Rd., said he’s also leased land from Kevin for agricultural purposes, and concurred on the need of an improved road. He said other people need access to their property and had a need for emergency access as well. He said the project would not generate an incredibly large amount of material. He questioned whether it was in the purview of planning and zoning to question engineering questions but should rather confine their inquiry to what the ordinance and comp plan says and whether the use fit.
    4. Loreen Ries, Spokane, said she owns property with her family east of the McNally holding and access it through Kevin’s. She said they have owned it for 12 years and come up in the spring and stay through the fall each year, and that she supports Kevin 100%. She said they’ve had two medical emergencies during their time here, and that it would have been nice to have a wider road. She said it would be ideal if the rock were used for the river restoration project, as the other alternative would be to haul it in, resulting in wear and tear on county roads if not used from the site, which would add additional cost to the project.
    5. Mike Halford, 740 French Point Dr., said he lives right above the area in question, and said that when the North Hill slope failed, he remembered the two blasts, saying they were just dull thumps. He said he built in 1993, and has had no problems with the work McNally’s been doing. He said Kevin has always allowed his family to hike and enjoy that property. Studer asked if he’d ever had problems with dust or noise, Halford said he could hear the trucks, but it was no worse than people mowing their lawns.
    6. Bob Byars, 2946 District 2 Road, said the “pit” has been there a long time, but it’s not like the gravel pits along the highway. He said Union Pacific runs four to five trains a day, which blow their whistles when entering the tunnel, so noise was not an issue. He said the short-term length of the project, the fact that the road will be built regardless and that if refused, they would be hauling in rock, and the fact that the Tribe’s engineers had analyzed the project made it a logical, short-term project.
    7. Don Rainey, 711 French Point Dr., said he didn’t see why this shouldn’t be allowed to go forward.
  15. Studer called for testimony from those uncommitted on the proposal.
    1. Mark Brackebush, Olympia, WA, made recommendation that if a conditional use permit were granted, that conditions be added to limit the scope of the project. He recommended that the permit be non-transferable, limited to two years in duration, no crushing, limited to work needed to build the road and that blasting be limited to five days. Cossalman asked if he minded continued sale of material after the project, Brackebush said he did not, just that there be no more mining.
    2. Roger Doucet, 928 French Point Dr., said that he was against the proposal when he came to the hearing, but that now he understands what’s proposed, he withdraws his objection. He stated that if it wasn’t a gravel pit, he had no problem with the proposal.
    3. Don Jordan, Naples, said we need gravel, but the application must be treated carefully and appropriate conditions be set. He said it would be beneficial to know the specifics of the proposal, and recommended tabling a decision until that information could be obtained.
    4. Dr. Jay Lantry, 376 Panorama Dr., said he always hears comments on how fragile the hillside is, and that you always see rocks rolling down the hill, one of which once stopped a train. He said he was reluctant to see a pit go in.
    5. Eileen Lantry, 376 Panorama Dr., said they moved in in 1988 and that it was a lovely, quiet area, and she would not like noise.
  16. Studer called for comment from those opposed to the proposal.
    1. LeRoy Austin, 26 Canterbury Ct., withdrew his opposition, saying this was a project that was going to happen anyhow.
    2. Terry Capurso, 548 Rim Dr., said the Kootenai River Restoration Plan was a $1.5-billion, 10 year project to save the sturgeon at taxpayer expense. He said this would not be a quick project. He stated that conditions couldn’t be imposed, that they wouldn’t be followed up. He stated that McNally had the right to put a road in, but if a pit were allowed, we would never have the ability to stop it.
    3. Donna Capurso, 548 Rim Dr., said she was a real estate agent and that the proposal would devalue homes in the area. She said that if people move in after a use has already been establish, that was your fault. She said she and her husband did due diligence and bought because of the area and surrounding uses. She said that a gravel pit would cause health problems and affect the desirability of homes and property. She said that under IC 54-2083, realtors were obligated to disclose anything that might adversely affect a purchase, and she said the proposal would have an affect on home sales. She said she was concerned about stability of the railroad.
    4. Tom McGuire, 104 Bordeaux Ct., asked how much rock would be needed and what would be available from the right of way. He said access to the river would most likely be by barge. He said the applicant should show before a decision is made all other impacts, on wildlife habitat, smoke, sloughing. He said it has to be shown by an engineer what the impact will be, and that everything to this point is speculative.
    5. Henry McMahon, 872 French Point Dr., said he has talked with Patty Perry of the Tribe and told that they expected about 60,000 cubic yards off Kevin’s pit, and said a gravel pit owner familiar with the area said extraction would require blasting, and that it would take more than one or two. He presented pictures taken from above showing the slopes and angles of the ground.
  17. An emergency recess was taken when Eileen Lantry was escorted from the room. After ascertaining she was okay and no medical assistance was required, the meeting was called back to order.

a.      (cont) McMahon said he’d been told that engineering studies had been done, but only regarding the amount of rock, not for stability.

b.      Dennis Lyons, Moyie Springs, said he has a view of the area, and that once allowed, how would it end?

c.      Mark Weber, 916 French Point Dr., said he has no opposition to what McNally says he wants to do, but said he can see the work area and was concerned by the public notice, which said a 56-acre gravel pit. He said he objects to a permanent quarry and wanted to know how we’d know the limits.

d.      Bud Larsen, 493 French Point Dr., presented photos of a recent slough in the area and said he was concerned about the stability of the rim.

e.      Tom McGuire questioned staff on conditions, Weland explained that terms and conditions could be made part of an approved permit, and that once approved, the conditional use permit became the controlling document for that parcel; any violations of the terms could result in the permit being withdrawn and enforcement action under the zoning ordinance.

18.  There being no further public testimony, Studer called for rebuttal. McNally said that dust raised during any work he’s done to date has never risen beyond the rail line. He said that after the road is widened, the project is done and the use will revert to what he’s been doing; if someone wants rock, they’ll have to bring a truck and a way to load it. He said this is not an on-going thing, and said that no one really knows that there’s been activities all these years. He said that there are two active gravel pits and manufacturing plants that are closer to the affected homes than he is. He said the road was needed. He said he couldn’t convince anyone he had ulterior motives, but said he’s lived there 34 years and plans on dying there. He said he likes quiet just as much as anyone. He said the blasts would be little and that there would be very little vibration. He said the letter of concern from the railroad indicated concern for vibration from a crusher, and reiterated that there would be no crusher.

19.  There being no further public testimony, Studer closed the hearing to public comment and called for discussion among members. Members concurred that the site plan and documentation in the application was sufficient, that there was sufficient land area to accommodate the proposed use, that the use was so situated as to minimize adverse impacts, that the use would impose no substantial adverse affects on adjacent property owners and that services available were adequate for the use proposed. Discussion was held on the imposition of conditions. After discussion, the following terms and conditions were established:

a.      No crushing.

b.      No blasting after work on road right of way was complete.

c.      Operations to take place Monday through Friday, 7 a.m. to 7 p.m.

d.      That excavation be limited in scope and area to that allowed by Idaho Department of Lands surface mining permit for the River Road Project, and for a period not to exceed the duration of the Kootenai River Restoration Project plus one year.

e.      That following completion of the Kootenai River Restoration project, sale of material is to be limited to no more than 10,000 cubic yards per year.

f.        That a copy of the IDL surface mining permit and reclamation be provided the zoning administrator prior to the onset of operations.

20.  There being no further discussion, Studer called for a motion. Cossalman made motion to approve conditional use application 11-005 with the conditions stipulated. Self seconded and the motion carried unanimously.

21.  Staff presented members the draft zoning and subdivision ordinance, stating that it had been reviewed by county civil counsel and commissioners, and recommended that members review and mark up the document and that it be set for initial public hearing at the April regular meeting. Cossalman opposed, preferring to hold a series of workshops prior to public hearing. Members felt that holding public hearing first would provide direction for refining the document. Cossalman disagreed, but recommended holding public hearing at the earliest date possible so that workshops could commence. Members agreed to set a special meeting for 5:30 p.m. Thursday, April 14, 2011, in the main courtroom, and then hold workshops during the regular April meeting April 21, and again May 5 and May 19, both to refine the text and to develop the new Boundary County Zoning Map, so as to hold a second public hearing on the ordinance and map at the regular June meeting.

22.  There being no further business, Studer made motion to adjourn, Cossalman seconded and the motion passed unanimously. The meeting adjourned at 10:30 p.m.