Meeting Information
-Convene
-Consider the approval of the minutes of May 13 and May 20, 2009
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders; and
(b) Consider approval of the Proposed Assessments: Southeast Lawrence Sanitary Sewer Main Benefit District No. 1 - Sanitary Sewer Improvements; Resolution No. 06-30; Southeast Lawrence Sanitary Sewer Main Benefit District No. 2 - Sanitary Sewer Improvements; Resolution No. 06-31; and Southeast Lawrence Sanitary Sewer Main Benefit District No. 3 - Sanitary Sewer Improvements; Resolution No. 06-32; and Approve the following: (a)Statement of Final Costs; and (b)Proposed Assessment Roll; and (c)Notice of Public Hearing and Proposed Assessment Resolution
REGULAR AGENDA
(2) Consider approval of Consent Decree with Mid-States Materials, LLC, dealing with Mid-State's quarry in western Douglas County and CUP-7-2-90, CUP-6-6-02, and CUP-12-09-06.
(3) Other Business
(a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
(c) Miscellaneous
(d) Public Comment
(4) Adjourn
Thellman called the regular session meeting to order at 6:35 p.m. on Wednesday, May 27, 2009 with all members present.
Flory moved to approve the minutes of May 13 and May 20, 2009 as amended. Motion was seconded by Thellman and carried unanimously.
CONSENT AGENDA 05-27-09
Flory moved approval of the following Consent Agenda:
► Commission Order No. 09-024 (on file in the office of the Clerk);
Motion was seconded by Gaughan and carried unanimously
Pulled from consent agenda:
PLANNING 05-27-09
The Board considered setting a public hearing date on the proposed assessments for the Southeast Lawrence Sanitary Sewer Main Benefit District No. 1 - Sanitary Sewer Improvements; Resolution No. 06-30; Southeast Lawrence Sanitary Sewer Main Benefit District No. 2 - Sanitary Sewer Improvements; Resolution No. 06-31; and Southeast Lawrence Sanitary Sewer Main Benefit District No. 3 - Sanitary Sewer Improvements; Resolution No. 06-32; and approved the following: (a)Statement of Final Costs; and (b)Proposed Assessment Roll; and (c)Notice of Public Hearing and Proposed Assessment Resolution.
It was the consensus of the Board to table the item and place on the June 1, 2009 Consent Agenda. The public hearing date will be set at that meeting.
PLANNING/ZONING 05-27-09
The Board considered the approval of a Consent Decree with Mid-States Materials, LLC, dealing with Mid-State's quarry in western Douglas County and CUP-7-2-90, CUP-6-6-02, and CUP-12-09-06. Mary Miller, Lawrence-Douglas County Metropolitan Planning Staff, presented the item.
Miller gave a short presentation on the development of a consent decree as a mechanism for achieving compliance with the requirements of the CUP and outlined the various provisions contained within the consent decree.
Thellman opened the item for public comment.
John Hutton, attorney representing Mid-States Materials, LLC, stated paragraphs C and D of the Consent Decree give a good overview of the situation. His client purchased the quarry in July 2007. The purchase was approved by the County Commission. One of the reasons for the Consent Decree is to address the over burden pile which was present prior to his client purchasing the quarry. This issue could have been addressed at the time of the purchase, but it was not. Hutton feels the Consent Decree is a fair plan and provides his client with a way to move forward.
Flory asked for Hutton to clarify that the pending CUP amendments have been withdrawn until the Consent Decree has been resolved. Hutton replied that is correct. Gaughan asked if the CUP amendments will be handled through the planning process. Hutton replied if his client pursues the CUP amendments they will go through both the Planning Commission and County Commission.
Howard (Rick) Henry, neighboring property owner, stated that he did not know his comments made at a meeting held with Planning staff, Mid-States, and neighbors would be used in the development of a Consent Decree and had he known he would have listed more concerns. He'd like to see reclamation for Phase 1. He feels there are still noncompliant issues in Phase 1 and quarrying was previously done in Phase 5. Berms have not been constructed prior to mining activities in certain phases of the quarry operation. He feels the berms should be the first thing built.
Flory stated if the Consent Decree is approved, it will not do away with the conditions of the Conditional Use Permit. It will only reinforce the CUP and address compliance and interpretation issues.
Thellman asked if the reclamation plan and sequencing will go through the Planning Commission. Evan Ice, County Counselor, stated the reclamation plan will go through the planning staff and then on to the County Commission; under the terms of the CUP, the Planning Commission will not review the reclamation plans. He is not sure if the reclamation maps will show berms because the berms are generally removed as part of the reclamation, but construction of the berms prior to rock removal is a condition of the original CUP.
Henry stated he would like the neighbors to be involved in the review process of the reclamation plans. And he also stated the private access road to HWY 40 used by the quarry to transport rock is not built to County standards. He would like to see improvements because the road impacts neighboring property owners with the 600-700 trucks per day expected as a result of the asphalt plant in Shawnee County. He feels that improvements to the roadway are appropriate at this time.
Flory stated he would like to explain that the February 19, 2009 meeting held with the Planning staff, County Counselor and neighbors was set to seek a resolution through the County Counselor and Planning Staff. Its purpose was to resolve the issues with the neighbors, which brought us to a Consent Decree; however the development of the Consent Decree was not the purpose of the meeting.
Dave Buffo, attorney for Lone Oak LLC, stated the Consent Decree is a good approach to resolve the issues. He stated that the overburden pile in Phase 1A was the subject of a lawsuit when the transfer of operator was approved. He stated a drainage study has not been submitted and the property owners should have a right to comment on it. It's clear that the water features are closer than 300 ft to road, which is not mentioned in the Consent Decree. He feels there should be a detailed construction schedule included in the decree, not just a note, would like the established elevation for the removal of the overburden pile to be determined, and is concerned with the quarries ability to move from phase to phase. He stated that a phase should be fully reclaimed before moving on to the next phase.
Thellman asked for the process of the reclamation plan to be explained. Ice stated the CUP directs the reclamation plan to be sent to the Planning Staff for review. The Planning Staff then forwards the plan to the Board of County Commissioners for approval. This is not a normal planning public hearing item. No public process or public input is specifically required. However, the Board can seek written or public comment if desired. Flory asked if the Board desires public comment can the request be administrative and not have to be in the decree. Ice stated that is correct, the Board can simply direct staff to do it.
Gaughan asked if the Board can incorporate new items into the reclamation plans without going back to the Planning Commission. Ice stated "yes", you can even tell the owner to revise or start over without going back to the Planning Commission for a new hearing.
Bart Christian, owner of Lone Oak LLC, stated he believes we are moving in the right direction. However, Mid-States agreed to conditions in entirety when purchasing the land, which is the reclamation of the entire property. He feels they have not met all the conditions. He expected more from the new owner. He indicated that he wanted to have input on the reclamation plan.
Hutton reminded everyone the main purpose behind the plan is it to take care of the over burden pile, a significant financial step for his client who is willing to do this. He urged the Board to not turn every step of the process into a public hearing. The Consent Decree proposed has time elements of having a reclamation plan to this body within 60 days of the execution of the agreement. Hutton stated that for the record, if the Board modifies the process through which the approval for the reclamation plan g s forward his client will have a hard time meeting that deadline.
Flory stated he thinks initially public comment is the way the Board will want to go during the process. The reclamation plan is the key and first step to convincing people we are on the right track. If anything we want to overdo the process. Flory stated if Mid-States is forced by the extra hearing into a situation where deadlines cannot be met, the Board will acknowledge that and would be willing to adjust deadlines if necessary.
Hutton addressed the earlier comment that berms will be built in the areas were excavation occurs. Overburden which results from quarrying is used to construct the berms. There is not enough overburden to berm the entire property. You never have the whole phase open all at one time because the CUP won't allow it. The particular area where mining occurs will be bermed, but not the entire quarter-section in which the phase is located. Flory noted that members in the audience were nodding, understanding this concept. On truck traffic, the 600-700 trucks per day statement is not accurate. The Traffic Impact Study addresses 'peak' traffic for one day when the plant is in 'peak production. High traffic days would only occur during peak times of business, July would be an example. The Road was built on a 50-year easement. Martin Marietta spent about $300,000 to upgrade the entrances. There is a drainage study for Phase 2 of which the quarry is operating under now. In Section 2 of the proposed Consent Decree there is a full explanation of reclamation. He said the CUP sets forth the setbacks for mining and there was no mention of a 300 ft setback between water features and the road.
Flory said he believes a 300 ft setback was shown on an exhibit and has been misconstrued to be a universal requirement of the CUP. Other provisions of the CUP and the reclamation attachment provide differing setbacks.
Hutton discussed the sequencing note and said that it is impractical to require specific dates. He said that Section VII(a) of the CUP d s not require full reclamation of Phase 1 until the quarrying operation is complete.
At 7:45 p.m., Gaughan moved for Board to move into executive session for 15 minutes, until 8:00 p.m., to consult with the County Counselor to discuss this matter which would be deemed privileged under the attorney-client relationship. The justification is to maintain attorney-client privilege on a matter involving Douglas County. Motion was seconded by Thellman and carried unanimously. Attendees included: Craig Weinaug, County Administrator; Evan Ice, County Counselor; Keith Dabney, Director of Zoning and Codes; Linda Finger, Planning Resource Coordinator; Scott McCullough, Director of Lawrence-Douglas County Metropolitan Planning Department; and Mary Miller, City/County Planner.
At 8:00 p.m., the Executive Session was extended for an additional five minutes, until 8:05. The Board returned to regular session at 8:05 p.m. with the public hearing in continuance and with no action taken.
Dave Henry, neighboring resident, stated he is concerned with the comment that the neighbors have misconstrued the 300 ft setback for water features. He stated that he is concerned that the 300 ft of flat ground beginning at the slope to the water feature will not be addressed in the current reclamation plan and is part of the original reclamation plan designed in 1990. He feels the1990 plan was based upon the best practices that existed at the time and g s a long way in preventing environmental disgraces in closed quarry sites. He wants to see the land suited for similar uses to what it was prior to it being quarried.
Miller responded the plan d s not say a 300 ft setback is required. However there are discrepancies between the concept plan and the reclamation plan that will need to be addressed. Flory asked when going forward, if any additional water features will be spelled out in the reclamation plan. Miller stated it will show exact location of any water features.
Flory moved to close the public hearing. Motion was seconded by Gaughan and carried unanimously.
Thellman commented as a new commissioner with a difficult project in front of her, she appreciates the work of staff and all parties involved. She stated what she is hearing is the Consent Decree is between Mid-States Materials LLC and the Board of County Commissioners. There is room in the process for discussion of a reclamation plan between staff and Mid-States, and there is room for input from the public if staff is directed to do so, but the additional input could lengthen the process.
Flory stated the Consent Decree is a way to solve problems and compromise without the courtroom, to go forward in good faith. He feels it is essential to support the public comment following the reclamation plan. He is supportive of the Consent Decree. The plan is not perfect but the best we can do.
Gaughan agreed with Flory's assessment of the situation and feels every issue is eligible for public comment. The spirit and eagerness is there to move forward.
Gaughan moved to approve a Consent Decree between the Board of County Commissioners of Douglas County, and Mid-States Materials, LLC for the matter of Conditional Use Permits for the Operation of a Quarry by Mid-States Materials, LLC for CUP-7-2-90 (No. 3500); CUP-6-6-92 (No. 3858) and CUP-12-09-06. Motion was seconded by Thellman and carried unanimously.
ACCOUNTS PAYABLE 05-27-09
Thellman moved approval of accounts payable amount of $199,620.27 Motion was seconded by Flory and carried unanimously.
Thellman moved to adjourn; Flory seconded and the motion carried.
____________________________ ____________________________
Nancy Thellman, Chair Jim Flory, Vice-Chair
ATTEST:
_____________________________ _____________________________
Jamie Shew, County Clerk Mike Gaughan, Member
Time and Date