Meeting Information
.-Presentation on Intelligent Transportation System (ITS) for the City/County/Planning Commissions at the Planning Commission mid-month meeting (at City Hall)
Johnson called the meeting to order at 5:15 p.m. on Wednesday, July 11, 2007 with all members present.
BUDGET 07-11-07
The Board conducted 2007 budget hearings. No action taken.
At 6:35 p.m., Jones moved for the Board to reconvene to regular session. Johnson seconded and the motion carried unanimously. The Pledge of Allegiance was recited.
CONSENT AGENDA 07-11-07
McElhaney moved approval of the following Consent Agenda:
► Commission Order Nos. 07-142 and No. 07-143 (on file in the office of the County Clerk);
The motion was seconded by Jones and carried unanimously.
PLANNING 07-11-07
The Board considered item PP-05-05-07 Preliminary Plat for Lakeside Vista, a mini storage, located at 1429 East 900 Road. Sandra Day, Lawrence-Douglas County Metropolitan Planning Department, was present for discussion. The application was submitted by Grob Engineering services for Robert Voth, property owner of record. Staff comes to the Board with a recommendation for approval of a Preliminary Plat for Lakeside Vista with a unanimous approval by the Planning Commission with the following condition and acceptance of easements:
1. Provision of a revised preliminary plat to include a 10' utility easement along the south property line and a 15' easement along the west property line per section 20-810 (f)(1) of the Joint City/County Subdivision Regulations.
McElhaney questioned, because of the close proximity to the City, if the City Commission was aware of the project and the action taken by the Board. Day stated that City staff has been involved in the process and that both the City and County Public Works departments have reviewed the project. Staff has all the documentation materials available for future annexation process.
Jones moved to approve the PP-05-05-07 Preliminary Plat for Lakeside Vista with the above-listed condition and the acceptance of future easements and rights-of-ways. The motion was seconded by McElhaney and carried unanimously.
PLANNING 07-11-07
The Board considered item CUP-12-09-06 Conditional Use Permit for Big Springs Quarry requesting a change in operator from Martin Marietta Materials to Mid-States Materials, LLC from Topeka, Kansas. The property is located at 2 North 1700 Road, Lecompton, Kansas. The application was submitted by Bob Schmidt, Vice President of Martin Marietta Materials on behalf of Martin Marietta Materials and Clifford C. Nichols, property owners of record. Mary Miller, Lawrence-Douglas County Metropolitan Planning Department, was present for discussion. The item comes to the Board with a unanimous recommendation from the Planning Commission, based on the following findings of fact and subject to the previous approved restrictions of use.
Zoning and uses of property nearby. The property is located on the western border of Douglas County and the quarry extends into Shawnee County. Nearby property is zoned for agricultural and residential uses with agriculture being the primary land use in the area. Property adjacent to the eastern portion of the southern boundary was rezoned A-1 and platted as a 13 lot residential subdivision in 2005, but has not been developed with residences.
Character of the area. This is a rural area with predominately agricultural land uses and a few scattered residences.
Suitability of subject property for the uses to which it has been restricted. The property is suitable for continued use as a quarry as it has been restricted.
Length of time subject property has remained vacant as zoned. The subject property has been in agricultural use since at least 1966, when the County adopted Zoning Regulations. The property has been in production as a limestone quarry since 1990, when the original CUP was approved.
Extent to which removal of restrictions will detrimentally affect nearby property. The operator change should have no negative impact on neighboring property owners as long as the quality and quantity of operation remain the same. Mid-States Materials indicated they would abide by the 22 restrictions on the CUP, just as Martin Marietta has done and their production and truck traffic will remain the same it has been historically.
Relative gain to the public health, safety and welfare by the destruction of the value of the petitioner's property as compared to the hardship imposed upon the individual landowners. Approval of the operator change may benefit the community in that production would continue at this quarry providing a convenient and economical source of aggregate. Denial of the change of operator may stop production at this quarry, and would require township, county and city departments to purchase their aggregate elsewhere.
Conformance with the Comprehensive Plan. The request is in conformance with the Comprehensive Plan. The quarry is a temporary use and reclamation of the mined land is one of the restrictions placed on the Conditional Use Permit. When the CUP has expired the land will be suitable for agricultural uses as much of the land will have been undisturbed and the mined land will be reclaimed.
Miller stated the quarry had to be compliant with the conditional use permit restrictions as outlined in the original CUP before the new application could come before the Board. She stated that Keith Dabney, Director of Zoning and Codes, sent a memo to the Board stating generally the quarry is compliant, however, there are a few changes necessary including the landscape plan. The CUP would be active until 2020 at which time they would have to apply for a new CUP if the owner wanted to continue using the quarry. Miller stated most mining CUPs are issued for 30 years.
Keith Dabney, Director of Zoning and Codes, discussed non-compliance issues that were addressed and corrected:
1. Fencing. It was determined to meet state regulations.
2. Drainage Study. Required for Phase 1 and 1A in original CUP. Study was submitted and met requirements.
3. Current Bond and Damage Bond. A Reclamation bond and damage bond is on file and was verified through insurance the amount is consistent with required CUP.
4. Hydrology study met CUP requirement.
5. Lake Permit from Division of Water Resources. Permit is not required until mining stops.
Jones stated the at one time, a business report was missing and he questioned if that was resolved. Dabney stated that the report had been submitted.
Johnson asked about the landscaping issue. Dabney stated the original landscaping plan showed approximately 1840 trees. Most of the trees are missing or damaged. He spoke with the State Forester, Lawrence Landscape, and Willowridge Landscape and determined that because of the environment of the quarry, many of the approved species of trees would not survive. The applicant proposes to reduce the amount of required trees and plant fewer, hardier trees that will flourish. The landscaper will also provide maintenance for a year to help ensure survival.
Jones asked if the CUP is approved, would the new owners have continuing obligations to bring the property into compliance. Dabney answered "Yes" and indicated that the obligations would include a new bond that is payable to the County.
Jones asked if there was a cooperative spirit in terms to resolve the compliance issues before there was a potential sale. Or did the necessity for compliance to complete the sale prompt them to bring the CUP into compliance1/2 Dabney responded that the recent efforts to bring the CUP into compliance were prompted by the sale due to a comprehensive review performed by the Zoning and Codes Department. There have been specific complaints that have been addressed during the course of the CUP including a call on reclamation during the weekends and a blasting that inhibited the view of the school buses on the surrounding roads. Jones asked Dabney if the operator was cooperative when addressing these complaints. Dabney stated he was.
Tom Murray, 1015 E 1296 Road, attorney for Lathrop and Gage representing Martin Marietta, introduced Stephen Mitchell, an attorney for Lathrop and Gage; John Hutton, an attorney representing the purchaser; and James Nichols, Plant Manager for Martin Marietta. He commented that the compliance process has been a demanding and expensive process to get through. However, the officials have been 100 percent professional and courteous.
Stephen Mitchell, real estate and business transaction attorney for Lathrop and Gage, stated the rock quarry has been shut down since 2005 and it will be good to see the quarry back in operation. An operation of this magnitude will have some complaints, but he feels Martin Marietta has done everything possible to make the quarry compliant. To his knowledge, the quarry has never been sited for any noncompliance issue.
Jones questioned the reason for the shut down in operation. Mitchell stated the shut down was due to the economies of scale in which Martin Marietta operates its plants. It was a business decision. He stated the proposed buyer has more local connections and may run a better operation. Jones asked if the CUP required the owner to plant trees or have trees. Mitchell stated he reviewed the law, the CUP written in 1990 did not require the owner to maintain the trees for any period, just to plant them. Today, CUPs are written with some type of maintenance agreement for at least one year. Jones asked if the applicant is going to show the Board a drawing with the trees and give a number of trees being considered. Mitchell stated Ron Baker, Willowridge Landscape, supplied the Board with some written materials and the Planning Staff has written in specific numbers of trees, approximately 150 trees with locations and species. Jones asked Mitchell to explain what the landscape will look like. Mitchell addressed a plan listing mostly sets of Austrian Pines and Hackberry trees. The conditions require all trees to be planted before December 31, 2007 except in area six, which is still in active mining. The conditions of transfer require Mid-States to comply with the landscaping conditions.
John Hutton, 3751 SW Ashworth Court, Topeka, Kansas, attorney representing the purchaser, stated he believes Martin Marietta is a good operator and has gone beyond duty to become compliant, but Martin Marietta is not a perfect operator. Having the quarry in operation will benefit everyone by using the natural resources that are there. If there are concerns about the current owner, then that is more reason to approve the transfer.
Ron Baker, 867 N 1072, owner Willowridge Landscape, Inc., stated the trees on the original plan could not survive. Some trees were planted in pastures, which where chewed off, and around crop fields, which were sprayed with chemicals. He suggested using different trees and to utilize the existing trees that are volunteer and growing. Jones asked the approximate cost of per tree. Baker replied the Austrian Pines and Hackberry trees would cost between $90-150 per tree.
Johnson commented that there is a dramatic difference between 1840 and 150 trees. Johnson asked Baker in his professional judgment, if planting 150 trees would begin to approach what was probably intended back in 1990 for screening. Baker stated, yes, if you take out the fact that many of the trees were planted next to crop ground and hay pastures. The area he is looking at has a lot of existing vegetation and he will fill in to increase the screening effect.
Dabney addressed the issue of remaining trees. It was determined by Jones that out of 1840 trees, 165 remain.
Miller stated the revised landscape plan from 1991 called out the species and number of species for each phase. The planning director approved the plan, but there is no note of who suggested the trees.
Murray commented that the original plan was something that you would see in Johnson County or along Clinton Parkway. The plan had the best of intentions, but is not workable. He stated he hopes the Board will recognize his client has hired an expert and has tried to come up with a plan that is workable.
James Nichols, 1230 N 400 Road, Plant Manager at Big Springs Quarry, stated the County had approved a revision to the original landscape plan, when the owner came back to add a shop to the premises. Also the original CUP requirement was for 3/4 inch caliber trees. The proposed plan is for 11/2-inch caliber of trees, which is twice as big as the original requirement.
Jones stated the new proposed plan is 18% of the original plan, and questioned if that number is adequate.
Johnson opened the meeting for public comment.
Dave Henry, Douglas County resident, stated his family owns property north of the site. He views this as a unique opportunity for the County Commission to make sure the quarry is in full compliance and stated concern about a lack of screening.
Chris Reed, attorney representing Lone Oak, L.L.C., discussed concerns regarding insufficient landscaping and reclamation issues for the lake in Phase 1A of the mining process. He stated the number of trees proposed in the original landscape plan would have been used as a dust screen and for erosion control measures. If the trees had been maintained properly, they would have survived and would already be much larger than the trees that the applicant is proposing now. He would like to see the current quarry operator be incompliance before the ownership transfer.
Bart Christian, representing Lone Oak, L.L.C., showed a video of watershed flowing from the quarry onto the Lone Oak property. He stated concern that debris has formed on his property due to runoff and he has filed a lawsuit against Martin Marietta.
Ken O'Connor, 149 N 1700 Road, Douglas County resident, stated he feels that at the time of the original CUP, it was the intention of the County Commission to have no activity on the weekends and stated concern that when a blast g s off you cannot see on-coming traffic. He asked if the new owner would be responsible for reclamation. McElhaney stated that the new owner would assume responsibility of reclamation.
Jason Sawyer, Conservation Officer and Game Warden, stated he d s not have a vested interest, but has noticed a large amount of sedimentation flowing into neighboring creeks.
Leonard A. Wood, 3141 Stubswood, stated he noticed the color of the streams on Lone Oak property changing from clear to gray by the release of water into the creeks by Martin Marietta.
Larry North, Spring Hill, Kansas, a patron of Lone Oak stated his concern regarding sediment in the creeks caused by the mining and damage to the trees. He asked that the Board bring the quarry into compliance.
Steve Mitchell stated there are many errors in statements heard. However, the fact is the state has approved and issued permits. Dabney confirmed that as true. Mitchell stated that many of the people speaking are part of the Lone Oak club and involved in a lawsuit against Martin Marietta He felt these people should not be a part of the decision to transfer ownership to Mid-State Materials.
Jones asked Dabney and Craig Weinaug, County Administrator, if during negotiations, they came up a plan to meet the landscape requirements or should the applicant have to meet what is in the CUP permit. Dabney stated that "no" they did not come up with a plan because they had heard from several experts who all stated the same concerns with the landscaping plans. It was left to the applicant to base their proposal on information received from the experts on what would work best at the site.
Jones asked Dabney and Weinaug if they accepted the proposal as being in compliance. Dabney stated the decision is up to the Board.
Weinaug stated the applicant made the argument that they planted the trees in accordance to the CUP, but they did not take care of them. Staff did find the evidence that the information in the CUP was not workable. Staff asked the applicant to come up with a proposal that would meet spirit of the original CUP. Weinaug told the Board that they must decide whether the alternate proposal currently submitted to the County to plant approximately 150 trees met the original intent of the CUP.
Dave Henry asked that the Commission help achieve getting the landscaping and berms in place along the roads on the quarry premises.
James Nicholson, plant manager, stated that the quarry complies with the active acres in use and the present state for reclamation. He produced a letter from the Kansas Water Resources Board stating active quarries are not required to have a water appropriation use permit until mining is complete. Nicholson read a memo from the Kansas State Conservation Commission regarding the lake in Phase 1A, stating the quarry is in compliance with reclamation and not subject to a bonding requirement.
Tom Nichols, 5425 Goddard, Shawnee, Kansas, is the son of property owners who lease land to Martin Marietta. Nichols stated he is in favor of approving the Conditional Use Permit and has a lot to lose if the property is not managed properly as he will inherit the land.
Allen Cutter, 8020 SE 29th, Tecumseh, stated he was in favor of the Conditional Use Permit. He is an excavating contractor, customer of Martin Marietta and friend of Bettis family.
Chris Reed again asked the Board for compliance regarding the landscaping and asked that the reclamation be brought to County standards.
Jones moved to close the public hearing; McElhaney seconded and the motion carried unanimously.
Jones stated there are a lot of issues and many beyond the Board's capacity to judge. The compliance issue will carry forward to the new owner. At the time of the original permit, the Commissioners tried to do the right things for the right reasons. He would like to see a reasonable balance for the neighbors and for Martin Marietta. Jones stated that he would like to see approval strong compliance mechanism added to the CUP for a complete compliant review in three years. Regarding the trees, he stated he would like to have a standard, but is not aware of what percentage that would be. Having the plant operating, gives the best hope for compliance. He stated the Board has an obligation to the public to enforce the things required, and an obligation to the commitment made to those neighbors, even though it was made 17 years ago.
McElhaney stated that he feels staff has done an adequate job looking at compliance issues and assuring action has been taken. He has full confidence in staff that a new owner will meet compliance issues. Regarding the vegetation issue, he stated he could attest to trees he has planted 17 years ago that are no longer in place. He stated living, breathing, botanical vegetation comes and g s due to extreme circumstances. He also commented that he was bothered by hearing the statement "take this back to the Planning Board." This has been in public review process for a long time. The Planning Staff report was done on January 22, 2007. No public comment was received prior to planning, even though letters were sent to surrounding property owners. The report shows the Planning Commission unanimously approved the CUP to transfer ownership and the Planning staff approved it. Staff has done a complete job and has contacted the appropriate agencies at the state level who have found the reclamation of the quarry to be in state compliance. He stated he is in favor of the CUP.
Johnson stated his issue is with the trees. He feels the landscape plan developed 17 years ago was a bad plan. Based on Ron Baker's evaluation, he stated the numbers do not add up but we may get a better result. If Baker can get 150 new trees living for a year, we have a better chance at getting a reasonable plan. He stated he would probably feel better if there were a larger number of trees. The issues of inspection and compliance are a real problem. It is incumbent upon us to put a two or three year window where we would bring this back for review and public comment.
Jones asked Miller if someone on the planning staff could review the plan and determine if proposed number of trees is reasonable. Miller stated that at Planning Commission, someone asked Sheila Stogsdill, Active Planning Director, about changing the number of trees and Stogsdill was not comfortable with the staff making the change. Miller stated the Planning Commission was in favor of the transfer as long as the County Commission found the quarry in compliance.
Johnson asked Eric Bettis, the buyer, what kind of neighbor he will be.
Eric Bettis, Managing Member of Mid-States Materials, stated the business is locally owned and is just a phone call away. It is his standard policy to address questions, comments and concerns straight up. He welcomed the neighbors to call him if they have concerns and he is willing to meet with them. Bettis stated is looking forward to working with Douglas County and the neighbors as well.
Jones moved to place the item on the Consent Agenda for the Monday, July 16, 2007 meeting to approve the CUP-12-09-06 Conditional Use Permit for Big Springs Quarry to transfer operator from Martin Marietta Materials to Mid-States Materials, LLC. The motion was seconded by McElhaney and carried unanimously.
ACCOUNTS PAYABLE 07-11-07
Jones moved to approve manual checks in the amount of $661.96 paid on 07/09/07 and a wire transfer in the amount of $674,000.00 paid on 07/09/07. The motion was 07/11/07. Motion was seconded by McElhaney and carried unanimously.
Johnson moved to adjourn; Jones seconded and the motion carried.
_____________________________ ________________________
Bob Johnson, Chairman Jere McElhaney, Vice Chair
ATTEST:
_____________________________ _________________________
Jamie Shew, County Clerk Charles Jones, Member
Time and Date