Meeting Information
Amended Agenda
-Convene
-Executive Session for the purpose of discussion on acquisition of right-of-way easements.
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders;
REGULAR AGENDA
(2) Consider approval of CUP-09-06-08, a Conditional Use Permit for an Aircraft Landing Area, located at 2142 N 300 Road. Submitted by Justin & Penny Johnson, property owners of record. (PC Item 8; approved 4-2 on 10/22/08) (Mary Miller is the Planner)
(3) Consider approving revised CPA-2004-02, a Comprehensive Plan Amendment to Horizon 2020, Chapter 7: Industrial and Employment Related Land Use and consider adopting on first reading, revised Joint City Ordinance No. 8283/County Resolution for Comprehensive Plan Amendment (CPA-2004-02) to Horizon 2020, Chapter 7. (Tabled at the 10/21/08 CC meeting; PC Item 11; approved 7-2 on 5/21/08) (Amy Brown is the Planner)
(4) Consider approval to participate in a cooperative bidding process for ortho photography (Dennis Albers)
(5) (a) Consider approval of and authorization for the Chairman to sign the Lawrence-Douglas County Metropolitan Planning Organization Re-Designation Agreement for Cooperative Transportation Planning (Todd Girdler)
(b) Consider selection of a voting member for the re-designated Lawrence-Douglas County Metropolitan Planning Organization (Todd Girdler)
(6) Other Business
(a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
(c) Miscellaneous
(d) Public Comment
(7) Adjourn
Johnson called the regular session meeting to order at 6:00 p.m. on Wednesday, November 12, 2008 with two members present. McElhaney joined the meeting at a later time.
EXECUTIVE SESSION 11-12-08
At 6:00 p.m., Johnson moved that the Board recess into executive session for 30 minutes to discuss a matter regarding Douglas County right-of-way purchases. Other attendees included: Craig Weinaug, County Administrator; and Michael Kelly, Douglas County Surveyor. Motion was seconded by Jones and carried 2-0. McElhaney arrived during the executive session.
At 6:20 p.m., Johnson moved for the Board to return to regular session; Jones seconded and the motion was carried 2-0.
Jones moved to approve Right-of-Way Contracts for Highway Purposes for Project No. 2007-13; Road No. 547 - Route 438 - N 1800 Road for the following property owners: James D Ens and Kim A. Ens, Lecompton, Tract No. 6 .0561 acres; Heritage Baptist Church, Inc., a Kansas corporation, Lecompton, Tract No. 15, 02058 acres; Heritage Baptist Church, Inc., a Kansas corporation, Tract No. 13, .7784 acres; and Donald M Fuston, Trustee of the Donald M. Fuston Trust dated February 13, 1997; and Margaret G. Fuston Trustee of the Margaret G. Fuston Trust dated February 13, 1997, Lawrence, Tract Nos. 11 & 12, .3460 acres. Motion was seconded by Johnson and carried 2-0. McElhaney abstained from the voting as the relocation of fence due to the right-of-way contracts might result in business for McElhaney Fence.
GIS 11-12-08
The Board considered approval for staff to participate in a cooperative bidding process for new orthophotography. Dennis Albers, GIS Department, was present for the discussion. Douglas County last updated its orthophotography in 2006 and it is recommended that updates be done every 3-4 years. Orthophotography provides a bird's eye view of the property looking down. It is utilized by the Emergency Communications department when assisting emergency personnel; Zoning, Public Works, County Commission, Appraiser's Office and the Sheriff's Office. By participating in a cooperative bidding process with Shawnee, Jefferson and Leavenworth Counties, staff anticipates a 10-15% cost savings. Funds are available in the Technology Fund.
Johnson opened the item for public comment. No comment was received.
Jones moved to authorize staff to participate in a cooperative bid for new orthophotography. Motion was seconded by McElhaney and carried 3-0.
CONSENT AGENDA 11-12-08
Johnson moved approval of the following Consent Agenda:
► Commission orders 08-066 and 08-067 (file with the office of the Clerk).
Motion was seconded by Jones and carried 3-0.
PLANNING 11-12-08
The Board considered the approval of CUP-09-06-08, a Conditional Use Permit for an Aircraft Landing Area, located at 2142 N 300 Road, approximately three miles east of Baldwin City. The area is zoned A (Agriculture) and agriculture is the predominate land use, however, the property nearby has been divided through the 5-acre exemption into parcels for residential development. The application was submitted by Justin and Penny Johnson, property owners of record. Mary Miller, Lawrence and Douglas County Metropolitan Planning Staff, presented the item. Keith Dabney, Director of Zoning/Codes was also present for the discussion. Staff recommends denial of the Conditional Use Permit for an airstrip at the above listed location based upon the following finds of fact:
Zoning and uses of property nearby. The property is located approximately three miles east of Baldwin City on N 300 Road. The area and the surrounding area are zoned for agricultural use. Agriculture and rural residential are the predominate land uses in the area. Other airstrips are located in the area and the FAA has indicated that the location is acceptable with an agreement between the users of the airstrips.
Character of the area. This is a rural area with agricultural land uses and rural residences. The surrounding property has been divided through the 5-acre exemption into parcels between 6 and 11 acres for future residential development.
Suitability of subject property for the uses to which it was been restricted. A Conditional Use Permit (CUP) d s not change the base, underlying zoning. The suitability of the property for agricultural or rural residential use will not be altered. The 30.2 acre property is developed with a house, a hangar and the airstrip. The A District allows numerous uses, including agricultural uses, and single-family dwellings. This property is suitable for the uses permitted in the A zoning district. The FAA returned a conditional determination for the airstrip. If the six conditions listed in the determination are met, the FAA determined the establishment of the proposed airport would not adversely affect the safe and efficient use of airspace by aircraft.
Length of time subject property has remained vacant as zoned. County Zoning Regulations were adopted in 1966; this property has been zoned "A (Agricultural)" since that adoption. The property is currently developed with a residence, hangar, and a paved airstrip.
Extent to which removal of restrictions will detrimentally affect nearby property. The removal of restrictions may detrimentally affect nearby property through the placement of an airstrip in close proximity to residences which may result in both safety and noise issues.
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. The approval of the CUP would allow the applicant to operate his plane from his property which would be a convenience for him. Denial of the CUP would prevent the applicant from operating his plane on the airstrip which is located between two residences and in close proximity to his own residence. Denial would also reduce the impact on the surrounding properties, primarily the noise associated with air traffic, as the plane would not be taking off or landing on this property.
Conformance with the comprehensive plan. Horizon 2020 d s not directly address the issuances of CUPs, but Chapter 12 Economic Development recommends that the Lawrence Municipal Airport approaches and air space should be protected from encroachment through height and land use restrictions. This proposed airstrip d s not conflict with the air space of the Lawrence Municipal Airport.
HOWEVER, if the Commission chooses to recommend approval of the Conditional Use Permit, Staff recommends the following conditions of approval:
1) Provision of a revised site plan to include the following notes:
a) "The permit will be administratively reviewed by the County in 5 years on Dec. 31st, 2013."
b) "The permit will expire at the end of 10 years on Dec. 31st, 2018, unless an application for renewal is approved prior to that date by the local governing body."
c) "The airstrip is for the private use of the property owner only and restricted to the airplane registered to the applicant and may not be used for commercial purposes."
2) The six conditions listed on the Federal Aviation Administration determination of approval for the airstrip must be met, per the Planning Director's approval.
Miller described the history of the original CUP application submitted on October 9, 2006 and it's denial on January 17, 2007. She stated the applicant's hangar, residence and the neighbor's accessory structure are all located within the primary surface zone, an area which should have no obstacles. The residences to the east and west are both located within the transitional surface zone. These standards are new and will be presented to the Commission for approval in December 2008. Miller stated she has received concerns from neighbors regarding noise and safety issues, and Zoning/Code violations. She stated that the FAA determination letter received expired on October 25, 2008. A protest petition was submitted, but was invalid. The applicant also submitted a petition in support of the airstrip from neighbors.
Jones commented the applicant continued to use the airstrip after the denial of the CUP in January 2007, and asked Miller to provide more details. She has a list of complaints received regarding the use of a helicopter and airplane. Tina Tourtillott, County Enforcement Officer, stated she has evidence consisting of a flight schedule from a complainant and photos confirming the applicant continued to use the runway after a cease and assist letter was issued from the Planning Office on July 7, 2008.
Jones stated the last airstrip application that came before the Board of County Commissioners was denied due to FAA ruling. He stated that he understands that for this application, the applicant has not met the standards from the FAA. Miller stated the applicant has not provided a clear transitional zone.
Johnson opened the item for public comment.
Justin Johnson, 2142 N 300 Road, stated he was to understand the County was supposed to adopt new standards for private airstrips. After inquiring about these standards, he has not received a response. He believes that the County should abide by the CUPs allowed in the past. He compared his runway to that of the Vinland Airport, stating it only 89 feet in width and has structures along its runway. He stated 90% of his violations to the Code were in his helicopter, but he has flown his airplane for maintenance. He stated he could not find an ordinance that stated he must have a runway to fly a helicopter.
Jones asked Johnson how many times in the last year did he fly his airplane into and out of his airstrip. Justin Johnson stated 8-10 times. Jones asked Johnson when he did that, did he know he was breaking the law. Justin Johnson replied that under agricultural zoning, he is exempt. Jones asked exactly what type of agriculture was he referring. Justin Johnson stated he uses his plane and helicopter to look at his property, at the grass growth and to see if there were leaks in the ponds. Jones asked Johnson when he received the cease and desist order, did he cease and desist1/2 Justin Johnson stated "yes" he did. There have been no flights on his runway since the cease and desist order was issued in July. There have been helicopter landings since that time but not all of them were his. Johnson stated if the Board wants to deny the CUP based on his helicopter landings, the punishment d s not fit the crime. If the Board wants to fine him for that, he is agreeable to that. Jones stated he believes there is a feeling of contemptuousness for the law here. Jones stated, "There is a theory you are pursuing that d sn't make sense, which is over time, government d s not have the right and the responsibility to make things better. We can't simply go back and compare situations to what it was 20 years ago. As new buildings require sprinkler systems, new plants require pollution controls and so the idea that you can look at the worst case scenario and say that's what the standard should be for you just d sn't work." Justin Johnson stated it would be unjust to make him follow rules that haven't been adopted yet. He commented that's like giving him a speeding ticket on a road that d sn't have a sign yet.
McElhaney asked if Johnson has filed tax forms stating his property is used for agriculture. Justin Johnsons stated "yes" he has filed tax forms for agricultural use. If his strip is denied, his next step is to purchase a crop duster plane.
Johnson opened the item for public comment.
Bill Cary, 2172 N 300 Road, stated he is opposed to the airstrip for safety reasons. He has witnessed the airplane take off and feels the airstrip is too close to the surrounding residences. Also the airplane and helicopter are noisy.
Caridad Flowers, 2146 N 300 Road, said Justin Johnson built her home and never told her there would be an airstrip. She gave a photo to the Commissioners showing the close proximity of her property to the airstrip which raises significant safety issues. In the summer of 2007, Justin Johnson increased his flying activity to 1-2 times per week and also increased his helicopter flights. On July 4, 2008, she saw Johnson fly over her house at 10:00 p.m. She stated the plane activity may have stopped after the violation notice, but the helicopter activity has not.
Kurt Flowers, 2146 N 300 Road, stated he has witnessed violations. The helicopter flights have not ceased since the violation notice. He has witnessed three helicopters in the air at one time, and Johnson has flown three different planes. He is concerned about the safety of the community. He stated as a builder, Johnson's life revolves around getting permits and d sn't believe that Johnson was unaware a permit was required for an airstrip.
Ron Keplinger, 2140 N 300 Road, stated he has no problem with safety or would never have built his house there. It was well known to everyone in the area that Justin planned to build the airstrip. He said he flew with Justin Johnson on July 4, 2008 at night and d sn't recall flying over the Flowers' house. Typically you don't fly at night due to the lack of lights because of the risk of hitting a deer.
Jones asked Keplinger to explain the circumstances of his flight on July 4, 2008. Keplinger responded that he flew with Justin Johnson in Johnson's helicopter on July 4, 2008 at night, but d sn't remember flying over the Flowers' home.
Jim Kiely, 344 E 2100 Road, stated he was the project manager involved in the building projects in the area. He sees no safety issues unless the neighboring children were to wander onto Johnson's property. He stated the Flowers were aware of the proposed airstrip before staking their lot because Kiely flew with Justin Johnson in his helicopter and landed by the lake while Mr. Flowers was fishing and they discussed the matter with Flowers.
Jones asked Kiely if he was the project manager for the properties. Kiely replied, he was and is an employee of Justin Johnson, J-Right. Jones asked in terms of seeking a permit, did it not occur to him that a permit may be needed for an airstrip1/2 Kiely stated he did not know. Jones asked how long Kiely had been doing this type of work. Kiely responded that he has been a project manager for approximately nine years.
Maggie Occeno, resident, stated she has text messages documenting flight times on July 4, 2008. At 5:31 p.m. the helicopter flew above the Flowers' home; at 10:25 p.m. the helicopter left the Johnson residence again; and at 11:01 p.m. the helicopter landed. She is concerned about safety issues and the fact there is no lighting. She has also witnessed Justin Johnson flying his plane.
Joanne Lee, 2173 N 300 Road, stated Justin Johnson has given her and her husband a ride in his helicopter and he is a safe pilot.
Penny Johnson, 2142 N 300 Road, stated her husband is a better flier than a driver and feels there are more accidents in cars than with planes. She stated Mr. Flowers shoots a gun on his property. She feels there should be more concern over gun safety than over flying.
Justin Johnson, 2142 N 300 Road, stated he did not deceive surrounding residentsin regards to his airstrip. He feels his runway is longer and safer than others in the county.
Jones moved to close the public hearing. Motion was seconded by McElhaney and carried 3-0.
Jones stated he is sorry there is a dispute between the neighbors, but this has nothing to do with that. Douglas County has an overarching responsibility to provide for safety. The FAA sets out conditions at which this airstrip could be operated safely. The airstrip is not meeting those conditions. On the basis of that letter, those conditions and the fact that those conditions are not being met he stated he will vote to oppose the CUP permit.
Johnson stated he will not vote for the CUP because he wants to see the regulations that we develop. He agrees with the Planning Staff's interpretation. He is disturbed that someone would fill out an application for a CUP saying they have full neighbor support when they do not. Once new regulations are adopted new applications can come forward of which the Board will look at objectively.
McElhaney stated he agrees with staff's determination and the FAA determination that the accessory structures are within the primary zone and there are adjacent residences in the transitional areas. He will vote "no" for the CUP.
Jones moved to deny the CUP-09-06-08 request on the basis of safety related issues. Motion was seconded by Johnson and carried 3-0. It was the consensus of the Board to schedule an executive session for Monday, November 24, 2008 to discuss noncompliance issues with Keith Dabney, Director of Zoning/Codes and the County Counselor.
PLANNING 11-12-08
The Board considered the approval of a comprehensive plan amendment and adoption of a joint City ordinance and County resolution related to CPA-2004-02 amending Chapter 7: Industrial and Employment Related Land Use in Horizon 2020. Amy Miller Brown, Lawrence-Douglas County Metropolitan Planning Staff, presented the item. Also present was Scott McCullough, Director of Planning. After a failing vote without a super majority, the City Commission at their October 21, 2008 hearing chose to bring the item to the Board of County Commissioners to weigh in on the revised chapter.
McCullough stated that the Chapter has been through four hearings with the Planning Commission. The City Commission feels the Planning Commission did everything they could and put more emphasis on prime land. In his opinion the draft is very close to what the language should be and supports the snowflake areas that represent possible industrial sites.
The Commission discussed all of the options available for their consideration and made the statement that they valued providing a strong message of unanimity to the City Commission by voting unanimously in favor of the Planning Commissions recommendation.
After discussion, Johnson moved to approve CPA-2004-02 as recommended by the Planning Commission at their May 21, 2008 meeting, and adopt Joint City Ordinance 8283/County Resolution 08-50. Motion was seconded by Jones and carried unanimously.
PLANNING 11-12-08
Johnson moved approval of and to authorized the Chairman to sign the Lawrence-Douglas County Metropolitan Planning Organization Re-Designation Agreement for Cooperative Transportation Planning. Motion was seconded by McElhaney and carried unanimously
PLANNING 11-12-08
Johnson moved to approve the Lawrence-Douglas County Metropolitan Planning Organization Redesignation Agreement for Cooperative Transportation Planning. Motion was seconded by McElhaney and carried unanimously. Johnson moved approval of a voting member for the re-designated Lawrence-Douglas County Metropolitan Planning Organization. Motion was seconded by McElhaney and carried unanimously.
Johnson moved to adjourn the meeting; Jones seconded and the motion carried.
____________________________ ____________________________
Bob Johnson, Chairman Jere McElhaney, Vice Chair
ATTEST:
_____________________________ ____________________________
Jamie Shew, County Clerk Charles Jones, Member
Time and Date