Meeting Information
-Convene
-Consider approval of minutes for October 29 and <1/2xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />November 10, 2008
CONSENT AGENDA
(1)(a) Consider approval of Commission Orders; and
(b) Consider approval of resolutions granting Cereal Malt Beverage licenses for Flamingo Enterprises/The Bird of Lawrence and Flamingo Enterprises of Lawrence (Clerk's Office)
(c) Consider approval of Township Notices to Clinton Township for First Stop; Eudora Township for Cecil Monday's Bar and Grill; and Grant Township for Midland Farm Store (Clerk's Office)
(d) Consider approval of Occupational License for Little Reno d/b/a Paradise Saloon (Clerk's Office)
REGULAR AGENDA
(2) Consider adoption of three separate Home Rule Resolutions, providing for special assessments upon property added to Southeast Lawrence Sanitary Sewer Main Benefit Districts No. 1, No. 2, and No. 3, respectively (Keith
Johnson called the regular session meeting to order at 8:34 a.m. on Monday, December 8, 2008 with all members present.
Jones moved to approve the minutes of October 29, 2008, as amended, and November 10, 2008, as amended. Motion was seconded by McElhaney and carried unanimously.
CONSENT AGENDA 12-08-08
Jones moved approval of the following Consent Agenda:
- Approve Resolution No. 08-46 granting a Cereal Malt Beverage License for Flamingo Enterprises/The Bird of Lawrence;
- Approve Resolution No. 08-47 granting a Cereal Malt Beverage License for Flamingo Enterprises of Lawrence;
- Authorize Notice to Townships for cereal malt beverage licenses to Clinton Township for First Stop; Eudora Township for Cecil Monday's Bar and Grill; and Grant Township for Midland Farm Store; and
- Approve Occupational License for Little Reno, d/b/a Paradise Saloon.
Motion was seconded by McElhaney and carried unanimously.
RESOLUTIONS & SANITARY SEWER BENEFIT DISTRICTS 12-08-08
The Board considered approval of three separate Home Rule Resolutions providing for special assessments upon property added to the Southeast Lawrence Sanitary Sewer Main Benefit District Nos. 1, 2 and 3. Evan Ice, County Counselor, and Keith Browning, Director of Public Works, were present for the discussion. Ice explained that in 2006, Eastside Acquisitions, LLC filed three separate petitions with Douglas County requesting the creation of three separate sewer benefit districts. The Board of County Commissioners adopted three resolutions (No. 06-30, No. 06-31, and No. 06-32) on September 18, 2006, with each resolution creating a separate sewer benefit district to serve land in Southeast Lawrence. The names given to the sewer benefit districts were: Southeast Lawrence Sanitary Sewer Main Benefit District No. 1; Southeast Lawrence Sanitary Sewer Main Benefit District No. 2; and Southeast Lawrence Sanitary Sewer Main Benefit District No. 3.
Since the creation of these sewer benefit districts, the Public Works Department has worked with the City of Lawrence to have the sewer infrastructure improvements designed and Douglas County has let contracts for construction. Construction of the improvements is essentially complete, awaiting only decommissioning of existing pump stations and other incidental work. After the final costs of the project are determined, each tract of property within the sewer benefit districts will be assessed for its respective shares of the cost of the project and the property owners will be permitted a period of time to pay the special assessments in full. Bonds will be issued to finance the portion of the costs of the project that property owners in the sewer benefit districts don't pay in full. The bond principal and interest payments will then be spread over the property in the sewer benefit districts and the property owners will be required to pay annual installments until the special assessments are fully paid.
Eastside Acquisitions, LLC has requested that the Board of County Commissioners adopt a home rule resolution for each of the three sewer benefit districts to establish a framework of how to determine the amount of money that must be paid by the owners of property that is subsequently added to one of the three sewer benefit districts and how to apply those funds. The Commissioners have adopted resolutions in the past for sewer benefit districts on the west side of Lawrence. It should be noted that once all initially levied special assessments and the bonds are fully paid, the sewer benefit districts are dissolved and these resolutions are no longer applicable.
Jones asked whether this procedure was consistent with what had been done in the past.
Ice stated that it was consistent with resolutions passed in 1988 and 1996 regarding the Yankee Tank Sewer Benefit District.
After discussion, McElhaney made a motion to approve the following Home Rule Resolutions:
- Home Rule Resolution No. HR-08-12-4, a Home Rule Resolution providing for special assessments upon property added to Southeast Lawrence Sanitary Sewer Main Benefit District No. 1 in Douglas County, Kansas;
- Home Rule Resolution No. HR-08-12-5, a Home Rule Resolution providing for special assessments upon property added to Southeast Lawrence Sanitary Sewer Main Benefit District No. 2 in Douglas County, Kansas; and
- Home Rule Resolution No. HR-08-12-6, a Home Rule Resolution providing for special assessments upon property added to Southeast Lawrence Sanitary Sewer Main Benefit District No. 3in Douglas County, Kansas.
Motion was seconded by Jones and carried unanimously.
MISCELLANEOUS 12-08-08
The Board discussed a letter received from John Solbach requesting an interpretation of Kansas Fence Laws as they apply to the fence viewing responsibilities of county commissions.
Craig Weinaug, County Administrator, explained that the fence viewing law has traditionally been interpreted to mean that whenever there is a dispute between two neighbors, they have a right to request a fence viewing with the County Commission. At a fence viewing, the County Commissioners go out and look at the fence, determine what the dispute is and essentially provide binding arbitration for that fencing dispute between two neighbors. There are others who have argued, including Senator Sam Brownback, that the statute should be interpreted differently.
Douglas County carries out its responsibilities under the law as described. Typically, when somebody comes to the County with a fence dispute, Weinaug attempts to mediate the dispute and if the mediation fails, the dispute is submitted to the County Commission for a formal fence viewing. In this particular case, when Weinaug offered to mediate, one of the parties hired attorney John Solbach. Solbach is asking that the law be interpreted differently than it has been interpreted in the past. While the Commission is not being asked to settle the current dispute, this discussion has been set in order to determine whether or not the Commission wants to interpret the law differently since that will dictate how this dispute is resolved.
McElhaney questioned whether it was the Commission's responsibility to interpret the law since it is set out by state statute.
Weinaug stated that while it is state statute, there are different ways it could be interpreted. If it is interpreted the way Solbach is suggesting, it would lead to a radically different conclusion on who is responsible for what.
Evan Ice, County Counselor, noted that the statutes are 100 years old and actually contradict each other. Ice noted there are two Attorney General opinions, one before the 1986 statutory change and one after the 1986 statutory change. Both opinions come up with the same conclusion. The Attorney General did not think the 1986 laws changed his conclusion.
The issue is whether someone who has crops or d sn't want a fence on one side is responsible for maintaining a fence when the neighboring property owner is pasturing livestock on the other side. The Attorney General's opinion is they are jointly responsible for maintenance and construction of the fence unless you are using the property in common. The K-State Extension Service has published a pamphlet on fence laws, but it d s not take a definitive position one way or another. It references the statute and notes there is a difference of opinion on how it should be interpreted.
Jones asked whether there was a difference between whether a fence exists and it's maintenance versus the construction of a fence.
Ice stated that a lot of people feel there is, because a lot of the fence laws refer to "repair, maintain and rebuild" but they don't specifically state the word "build." Therefore, some people think that means there is a distinction between creating a partition fence that d sn't exist or rebuilding or repairing a partition fence that is already there. Ice stated that he feels that until there is actually a fence viewing, the Commission isn't really in a position to make a binding decision. Even if there is a fence viewing, there are more ambiguities about what a person can appeal since there is a clear provision in the statutes that say the decision of the fence viewers is final and binding and conclusive - there is no appeal process. However, there are court cases that indicate that if the fence viewers are awarded money, the amount can be appealed. It comes back to the issue of whether a property owner who d sn't want a fence, has to pay to maintain a fence.
Ice explained that there is another concept that says that a person can "throw his land open" and petition the fence viewers to come view the land and basically have the neighboring property owner pay some amount of money because they have to buy half of your fence. It is all discretionary among the fence viewers whether there should be money paid or not.
Senator Brownback didn't do an in-depth analysis of K.S.A. 29-309. His article was more about if livestock gets out of a fence and causes a traffic accident or causes damage, when is the owner of the livestock liable. He d s in passing say that he d sn't think you should have to pay for a fence that you don't want.
Jones asked what the Commission's responsibility is under the state statute.
Ice stated that the Commission's responsibility is to do a fence viewing and either make a determination that both properties have to maintain the fence in equal shares and determine the point. He reiterated that his recommendation is that since there is not an active case being presented, he felt it was inappropriate for the Commission to weigh in on this matter. That is what the Attorney General's opinion clearly states. The Attorney General's opinion d s not address the separate statute regarding "throwing your property open." There aren't any reported Kansas cases on any of these.
McElhaney asked if the statutes put the Commission in the position of having to address fence issues in the suburban or incorporated city limits.
Ice stated that he was not sure if there was a specific provision that limits this to the unincorporated area. He believed the clear intent is that it is for open tracts of land. He noted that approximately three (3) years ago, the legislature made one small change in the statutes stating that the Board of County Commissioners can appoint designees to be the fence viewers.
John Solbach stated that he felt that if the County Administrator mediates it, he should know what the policy is. Senator Brownback references the Attorney General's opinion, but states that he d s not agree with it.
Solbach stated that his interpretation of the law is that if a property owner has livestock, they have a duty to fence them in; a property owner that d s not have animals d s not have any duty to fence them out. If you're going to require them to pay for half of the fence, it's turning the fencing policy on its head. It's stating that we have a fence-in policy, but you have to pay to help fence the animals out of your place. The Attorney General's opinion in 1987 cites the statute about use "other than in common with your neighbor." But the statute d sn't say "with your neighbor." He wasn't sure what "otherwise in common" meant but it d sn't make any sense unless you ignore those words. He noted that he has seventeen (17) landowners that he shares fence with and only two (2) have animals. It d sn't seem fair that he could unilaterally decide to buy a cow and send his neighbors a bill for half of the fence, and continually send them a bill for half of the cost of maintaining that fence. When you look at all the statutes together and try to make some coherent meaning out of them, the coherent meaning is if you have animals, you have to fence them in. If you're going to fence them, you have to pay for the fence and for the maintenance of the fence. If the Commission would give an interpretation, that would at least give somebody the basis for bringing a declaratory judgment. He suggested that the Commission could direct the county counselor to bring a declaratory judgment on behalf of the County Commission since we don't know how to interpret the law. The local judge would interpret the law and we could get a definitive interpretation of the law.
Ice stated that there would have to be a case in controversy. Courts can't just give advisory opinions. Douglas County can't just file a lawsuit and ask a judge to tell us what this statute means. A fence viewing would have to take place and a decision made, then there would have to be an opposing party, etc.
Jones pointed out that litigation could get quite expensive. The County d sn't want to spend $10,000 in litigation to fix a $500 fence.
Solbach suggested that it would be helpful for the Board of County Commissioners to issue a policy statement about who is responsible for building and maintaining a fence when one of the parties has animals and the other d s not have animals. The property owner with the animals has a duty to put up the fence in order to follow the "fence-in" policy we have in this state.
Jones questioned whether there had ever been any livestock on the 80 acres in question.
Solbach responded that he believed there had been at some point.
Johnson stated that g s to the question of what caused the fence to be there in the first place.
Jones noted that since there is no livestock currently on the property, the property owner should not have any obligation to maintain the fence. He questioned what would happen if/when they were to sell the property or decide to put livestock back on. Do you just "turn on" the switch that requires them to fence in the livestock1/2 D s the switch go on and off according to what is occurring on the property at any given moment1/2
Solbach responded that that was what the statutes contemplate.
Ice noted that if the property owner "threw the land open" whatever partition fences are there become owned by the neighbor and wouldn't be owned by the person that d sn't want his land enclosed. If he wanted to put livestock on in the future and utilize those fences, the argument could be made that he would have to buy half of the fence from the neighbors. It would still involve a fence viewing, but the issue would not be who maintains what portion of the fence, but what amount of money, if any, should be paid to the person who wants to throw his land open since he is losing ownership of the partition fence.
Jones questioned whether the Commission should weigh in on this without a fence viewing request being formally made.
Solbach stated he thought the Commission should.
Johnson questioned why the Commission would want to get involved in shared fences. He stated that he didn't want any part of settling a dispute between a neighbor that wants to build a fence that might cost $10,000 and tell his neighbor he is responsible for $5,000.
Weinaug pointed out the state statute requires the Commission to get involved.
Solbach noted that he felt like all the statutes needed to be looked at in context. They can't be looked at separately since they all impact each other. The overall intent needs to be looked at.
Chris Marshall, the petitioner, stated that his family has owned this land since it was homesteaded. There is a common fence that has been on the property for many years. He explained that he d s have cattle on the property a couple of times during the year and the issue is a flood gap across a creek that occasionally g s out. The cattle get out at that location. He stated that according to the statutes, he believed his neighbor (Rob Marshall) should share in the cost of repairing/maintaining the fence.
Rob Marshall stated that he owns 110 acres bordering Chris Marshall's property on the west side. He noted that there isn't much of a fence. The cattle can step over anywhere and weren't getting in through the water gate. They were getting in through other places along the fence line. He noted that his land is used as agriculture and he has a covered crop of clover which the cattle prefer. Fixing this portion of the fence will not solve the current problem. He asked where the fairness was in him having to pay for a fence Chris Marshall owns that Rob d s not need.
Johnson stated that fairness is a big issue. As Douglas County urbanizes, there will be more opportunity for this sort of conflict to occur between the agricultural community and the residential community. He felt like this was something the new commission would need to address.
Weinaug suggested that the Board table further discussion.
No action was taken.
McElhaney excused himself at 9:32 a.m.
PLANNING & RESOLUTIONS 12-08-08
The Board considered approval of CPA-2008-04, Amending Chapter 6 - Commercial Land Use - Lawrence - New Commercial Areas and Map 6-1 to correct inconsistencies between map and text. The Board also considered approval of CPA-2008-5, to Amend Chapter 6 - Commercial Land Use - to correct policy numbers under Goal 3 (duplicate numbers). These items were initiated by the Planning Commission in April 2008 as part of the annual review. Michelle Leininger, staff member of the Lawrence-Douglas County Metropolitan Planning Department, presented these items. Both items were passed unanimously by the Planning Commission.
After discussion, Jones moved approval of Joint Ordinance No. 8341 of the City of Lawrence, Kansas and Resolution No. 08-48 of the Board of County Commissioners of Douglas County, Kansas amending the Comprehensive Land Use Plan "Horizon 2020" by incorporating by reference "Chapter 6 - Commercial Land Use, Lawrence - New Commercial CPA-2008-4, November 11, 2008 Edition " prepared by the Lawrence-Douglas County Metropolitan Planning Office and Repealing the existing section. Motion was seconded by Johnson and carried.
Jones then moved approval of Joint Ordinance No. 8342 of the City of Lawrence, Kansas and Resolution No. 08-49 of the Board of County Commissioners of Douglas County, Kansas amending the Comprehensive Land Use Plan "Horizon 2020" by incorporating by reference "Chapter 6 - Commercial Land Use, Goal 3, CPA-2008-5, November 11, 2008 Edition " prepared by the Lawrence-Douglas County Metropolitan Planning Office and Repealing the existing section. Motion was seconded by Johnson and carried.
PUBLIC WORKS 12-08-08
Keith Browning, Director of Public Works/County Engineer, appeared before the board requesting permission to solicit bids for Project No. 2007-13. This is a 2.26 mile long project that includes reconstructing 1.70 miles and adding paved shoulders to 0.56 miles of Route 438 beginning at the Route 1029 curve and ends at the pavement widening near the K-10 (SLT) intersection. The finished roadway will have two 12-foot lanes with two 8-foot paved shoulders. The Capital Improvements Project includes $3,000,000 for this project scheduled for construction in 2009.
Plans were designed in-house and are essentially complete. Rights-of-way and temporary easements have been acquired for fourteen of sixteen total tracts. Meetings are scheduled with remaining property owners and it is hoped that an agreement will be reached at that time. Utilities are scheduled to be relocated by mid-February 2009.
Once rights-of-way have been acquired from the final two tracts, we will be ready to solicit bids for construction. Permission is being sought to solicit bids contingent upon reaching agreement on right-of-way settlements with owners of the remaining two tracts. This would allow us to begin the mandatory 20-day advertising period prior to January 12. Construction is expected to take approximately eight months, so it is essential that construction begin near March 1. Estimated construction is approximately $2.6 million.
Jones asked whether the entire project was funded by the County.
Browning stated that it was.
Jones noted his concerns about the County's financial condition over the next year. He then made the motion to grant permission to solicit bids for Project No. 2007-13, Route 438 improvements, contingent upon acquiring rights-of-way or reaching agreement on right-of-way acquisition settlements with all affected property owners with some caution with regard to fiscal situations and other demands that might emerge. Motion was seconded by Johnson and carried.
ACCOUNTS PAYABLE 12-08-08
Jones moved to approve accounts payable amount of $176,939.24 to be paid 12/08/08; wire transfers in the amounts of $860,738.95 paid on 12/01/08, and $150,000 paid on 11/19/08; payroll in the amount of $787,269.74 paid on 12/05/08; and Electronic Funds Transfers in the amounts of $69,971.53 for KPERS and $56,876.09 for FICA paid on 12/05/08. Motion was seconded by Johnson and carried.
Jones moved to adjourn; Johnson seconded and the motion carried.
____________________________ ____________________________
Bob Johnson, Chairman Jere McElhaney, Vice-Chair
ATTEST:
_____________________________ _____________________________
Jamie Shew, County Clerk Charles Jones, Member
Time and Date