Meeting Information
6:35 p.m.
-Convene
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders;
(b) Consider approval for the annual maintenance agreements for Emergency Communications (Scott Ruf)
(c) Consider approval of 2011 Holiday schedule (Sarah Plinsky)
(d) Consider approval 2012 Cost-of-Living adjustment as included in the 2012 budget (Sarah Plinsky)
REGULAR AGENDA
(2) Accept CUP-10-6-10: Consider a Conditional Use Permit for Kaw Valley Eudora Sand Facility, located at 2102 N 1500 Road, NE of SW Cor. SW 1/4 S32-T12S-R21E, on approximately 196.58 acres. Submitted by Landplan Engineering, P.A., for Kaw Valley Companies, Inc., contract purchaser, for James and Ronda Bigger and Wellsville Bank, property owners of record. (Sandra Day is the Planner)
(3) Other Business
(a) Consider approval of Accounts Payable (if necessary)
(b) Appointments:
Building Code Board of Appeals - vacancy
Lawrence-Douglas County Advocacy Council on Aging - vacancy
Douglas County Community Corrections Advisory Board - 12/2011
Douglas County Senior Services, Inc. Board of Directors - 12/2011
Jayhawk Area Agency on Aging Tri-County Advisory Council - vacancy
Fire/EMS District No. 1 - 12/2011
(c) Public Comment
(d) Miscellaneous
(4) Adjourn
Flory called the regular meeting to order at 6:35 p.m. on Wednesday, December 7, 2011 with all members present.
CONSENT AGENDA 12-07-11
Flory moved approval of the following Consent Agenda:
► Commission Order No. 11-035, 11-036, 11-037, 11-038, 11-039
(on file in the office of the Clerk);
► Annual maintenance agreements for Emergency Communications as follows:
- Motorola Solutions Service Agreement #S11114112871 - $36,916.68;
- Motorola Solutions Premier MDC Maintenance & Support Agreement #105-1421-000 - $17,273.00; and
- Sungard/HTE CAD400, CRIMES Management, E911-CAD Agreement #6051 - $21,632.00
► 2012 holiday schedule:
New Year's Day Monday, January 2
Martin Luther King's Day Monday, January 16
Memorial Day Monday, May 28
Fourth of July Wednesday, July 4
Labor Day Monday, September 3
Thanksgiving Thursday-Friday, November 22-23
Christmas Monday-Tuesday, December 24-25
One (1) Personal Discretionary Day
► 2012 1.0% Cost of Living Adjustment (COLA) to all COLA eligible employees as included in the 2012 Budget.
Motion was seconded by Gaughan and carried 3-0.
PLANNING 12-07-11
The Board considered approval of a Conditional Use Permit CUP-10-6-10 for Kaw Valley Eudora Sand Facility, located at 2102 N 1500 Road, NE of SW Cor. SW 1/4 S32-T12S-R21E, on approximately 196.58 acres. The application was submitted by Landplan Engineering, P.A., for Kaw Valley Companies, Inc., contract purchaser, for James and Ronda Bigger and Wellsville Bank, property owners of record. Sandra Day, Lawrence-Douglas County Metropolitan Planning Staff, presented the item.
It was determined the applicant wishes to have the item sent back to the Planning Commission for reconsideration with new information. It was the consensus of the Board to hear the presentation from staff and the applicant and to accept public comment. Any new information received by the Board would need to be reviewed by the Board after the meeting.
Day presented the Board with three options they may take this evening. The Planning Commission on April 15, 2011 recommended a denial from the Board of County Commission. Day stated if the BOCC proceeds with the public hearing their option for action are: 1) make finding that agrees with the Planning Commission which is a denial; 2) Overturn the Planning Commission's decision; or 3) Remand, send back the CUP to the Planning Commission with direction. If the Board votes to deny the application, the applicant cannot be resubmitted in its present form for one year. Or, the applicant can make a new application with the Planning Department with an affidavit stating this is a substantially different request from what was previously presented. If the Planning Commission determines that the amended request is not substantially different from the original application, then the applicant will have to wait 12 months to resubmit a new application.
Thellman raised the concern that Leavenworth County did not appear to be actively participating in the discussion at the Planning Commission or here at the County meeting and wondered if they should since they are also named in the contract for upkeep of the jetties, as well as, sharing responsibility with Douglas County for cost and maintenance of the downstream bridge. There was discussion that staff had not received any comments from Leavenworth County, who borders this property. Staff determined that proper notice was sent to Leavenworth County. The county line runs through the middle of the river and the applicant's property is totally within Douglas County.
Larry Winn, land-use/zoning attorney presenting the applicant, introduced the team representing the application. He indicated that the Commission did not have a full and complete Record of the proceedings and the commission was not provided with stipulations for approval. He addressed the County Zoning regulations and stressed that the proposed request is a permitted with conditions, as zoned.
The Board also confirmed that three items submitted to the Board today, had not been reviewed by the Planning Commission, with those items being a letter from the Corps of Engineers, the water quality report and a support letter from the Friends of the Kaw.
Commissioner Gaughan asked Mr. Winn if it was his position that the Commission could not deny the request unless there were no conditions to make the use compatible. Mr. Winn said yes.
Alan Teutemacher, Kaw Valley Companies Inc. representing the applicant, described the business with approximately 20 employees. The three to four employees generated by the proposed request is significant. He also described the dredging process to use state-of-the-art equipment that would minimize the risk of pollution impacts. He further discussed the impact of a similar operation in near RWD#1 Johnson County and the fact that there is no evidence of negative impacts on the water resulting from the company's operations at that site. He also described the sound study performed and compared the noise level to the sound of a tractor.
At 7:45 p.m., the Board recessed for five minutes. The Board returned to session at 7:50 p.m.
Carl Nuzman, P.E., professional engineer and hydrologist working for the applicant, stated a well head protection study was completed by using a particle tracking devise program. He explained the water flows from west to east, from an upgraded level to a downgraded level, toward the Kansas River. The wells are uphill from the river. The results of the study stated "the proposed sand pit lake that will eventually be developed in this study area will have no deleterious effect on the City of Eudora's wells or water supply."This study was not presented to the Planning Commission on April 25. Nuzman also indentified the capture area of the wells and discussed a cattle farm 500 feet east of Well No. 6. It was determined by the study the water is at the point of stagnation with little or no risk of contamination to Well No. 6 which is also surrounded by a corn field. The cornfield, however, d s propose a risk from the irrigation of the corn with commercial fertilizer.
Thellman stated there is more to consider than contamination. She is concerned the sand pit will lower the levels of water in the wells. Nuzman stated that just d sn't happen. The amount of waterfall exceeds the evaporation loss.
Phil Struble, with LandPlan Engineering representing the applicant, stated the plan before the Commission tonight is not the submitted site plan, but the revised version he wants to present to the Planning Commission. He stated that the Corps of Engineers had approved a 404 permit within the last few days. Therefore this permit had been approved after the consideration by the Planning Commission. This was one of the reasons why the applicant was asking the County Commission to remand the application back to the Planning Commission with direction. He also explained that a Freedom of Information Act request (Corps' decision document) had been submitted by the applicant for the engineering details of the Corp's finding and that information would not be received by the applicant for several weeks.
Thellman asked when the jetties in the Kansas River were put in place and what were the circumstances that caused them to be need. Struble stated the jetties were constructed due to the 1952/1953 flood and set in place to cause sand to fill in this part of the river as a way to protect the downstream bridge. Struble added that the result of a Corps' decision document will not available for two more weeks. This particular study will be important to the County's consideration of whether the sand pit will pose any risk to the Eudora Bridge.
Mehrdad Givechi, P.E., certified traffic engineer working with the applicant, discussed the traffic study and stated he sees no negative impact from the expected truck traffic.
Price Banks, land and zoning attorney representing the applicant, pointed out zoning and uses of the surrounding area that wasn't stated in the staff report. The area south of the site contains a sewer treatment plant, railroad tracks, salvage lot and storage and some other high intensity uses in addition to other agriculture uses. He pointed out that the property in question is located in an agriculture zone, which permits mining with a conditional use permit. The property has in the past been used for agriculture, a golf course and a trash dump. He stated the key factor, as he pointed out in the Douglas County Zoning Regulations, is the statement that mineral deposits need to be protected for their development and production. According to Banks, the use of this property for mining complies with Horizon 2020 and is ideally located for mineral extraction.
Flory asked if the Board decided to approve this CUP, what conditions could the Commission build in the CUP that would relieve the City of Eudora of any financial impact if a catastrophic event would happen and the water became contaminated. Banks answered that it is common to set conditions upon approval, and the code provides that a reclamation plan is required.
Larry Winn, land-use/zoning attorney representing the applicant, added that the applicant has listed the City of Eudora as a loss payee to a $1 million liability policy should a catastrophic event happen.
At 9:15 p.m., the Board took at 10 minute break. The Board returned to regular session at 9:25 p.m.
Scott Michi, planning consultant for the City Planning Commission of Eudora, commented that the Planning Staff recommendations were based on staff findings and centered on the City of Eudora's comprehensive plan. The property is within the three mile Eudora planning growth area. The recommendation from the Eudora Planning Commission is denial. Michi stated this is a zoning matter handled under a CUP. However, because of the applicant's proposal calls for a number of land uses which includes large equipment and trucks, the City of Eudora considers this type of usage as industrial and therefore not eligible for the proposed location. He proposed the applicant consider areas in Eudora designed for industrial usage.
Flory stated that we are dealing with a request for a sand pit which is clearly considered an agricultural use under the County comprehensive plan.
Michi discussed the City of Eudora wanting to keep land within the 100-year flood plain open and undeveloped and he mentioned several specified areas within the City which encourages intense land users to locate. The City recommends the Board of County Commission follow the recommendations of the Eudora Planning Commission and the Lawrence-Douglas County Planning Commission and deny the application.
Flory opened the item for public comment.
Mark Neis, Eudora resident, stated he feels the application should be denied. Digging the pit will eventually cause the river to shift which will affect the bridge. He further commented on the loss of land from flooding. He stated that there was no change to the factors that were the basis for the denial of the request. Mr. Neis stated concern about the separate environmental issue of the dump.
Melvin Morris, Eudora resident, claimed that Kaw Valley Companies has had problems dredging too close to wells in Morris, Kansas.
Martha Saunders Skeet, Lawrence resident, stated her family owns land by the Kansas River that started out in the 1950s with 60 acres and the land now has eroded to 20 acres. Her fear is that will happen to the land in the east and cause destruction to the Kansas River Bridge. She also stated a concern about the dump in the 1960's. Ms. Skeet stated that there is no room for vehicles on N 1500 Road especially when the Schaake's Pumpkin Patch is operating and cars are parked on both sides.
Louise Hamilton, resident of Arkansas, stated the wells the City of Eudora uses are on her property and the land is class 1 and 2 soils. She stated concerns about the river shift and affecting the bridge causing taxpayers to fund a new bridge. She stated her intention to continue to provide wells as long as the City continues to grow.
Benny Dean, resident of Eudora, state since the 1960s, he has witnessed the river shifting over the years and when the water gets high it follows the old river beds. He wanted to know who would be responsible to care for the remaining "recreation deal" at the end of the use. He is opposed to CUP.
Pradeep Natarajan, Eudora resident, commented that he is pro business but the residences are concerned about the impact the sand pit could have on Eudora. He d sn't understand why the applicant hasn't addressed the Surety Bond.
Delbert Breithaupt, Eudora resident, stated concerns about the dredging causing contamination of the water wells. He is opposed to the CUP and concerned about the insurance not covering a disaster.
Winn responded there has never been any real discussion on the bond issue, but he d sn't feel it's a bad idea. It is not a one-time payment; it would be an annual payment. Winn added the applicant is more than willing to support any remedy concerning the jetties. He wants careful consideration on any change of the jetties.
John Harrenstein, City Administrator of Eudora, stated the City Council did not support remanding the application back to the Planning Commission. The council supports a decision to uphold the denial to oppose the CUP. In response to the question of the jetties, the City has stated they want them left in place. He feels no one can completely assure the dredging will not impact the water supply.
Flory moved that we close the public hearing; motion was seconded by Gaughan and carried 3-0.
Keith Browning, Director of Public Works, stated his main concerns are the jetties and the Kansas River Bridge. Browning said he has been waiting for the jetty study report from the Corps of Engineers. He opinion is to weigh on the conservative side. He stated that an expert was retained by the County because of the concern. He is still waiting on the technical data. Mr. Browning referred to photo documentation that demonstrates the function of the Jetty. He also discussed with the Commission that the responsibility for the bridge and jetties is shared with Leavenworth County.
Flory stated he is not comfortable casting a vote tonight. He needs time to look at the new information presented. He proposed deferring the item.
Gaughan stated there are two considerations, 1) addressing the application as it was processed through Planning Commission, and 2) in view of the second set of facts, the applicant wants the CUP to go back to the Planning Commission. Gaughan stated the Board needs to determine if they are asking the applicant to wait a few weeks and come back or a year and come back. He feels the new information presented tonight is not relevant to the current request but he d sn't know if it qualifies as substantial. He stated he cannot make the determination tonight.
Flory stated the commission was free to consider the information and could condition the application if it chooses. He stated that the Planning Commission was better equipped to assess the new information.
Thellman stated the residents have confidence in their local government and the CUP is not what the City of Eudora, City Council or Eudora Planning Commission wants. Though the agricultural district may allow this kind of mining use, the comprehensive plan is used as a guide for projects on a case by case basis. Maybe this project would be acceptable in another location along the river in Eudora but not in this location. Thellman stated Struble even made the comment at the Planning Commission meeting that there would be erosion and this is not the ideal site. Eudora is at risk for an expensive piece of infrastructure. We don't want to overlook common sense.
Flory moved to defer this item to the January 11, 2012 meeting. Motion was seconded by Gaughan and carried 3-0.
PUBLIC WORKS 12-07-11
Flory moved to approve a right-of way utility easement with Westar Energy
for the Burlington Northern Railroad Overpass, State Project No. 10-23-KA-0785-01 on the following described property situated in Douglas County:
That part of the Southeast Lawrence Suburban Acres Subdivision in the Northeast Quarter of Section 7, Township 13 South, Range 20 East of the Sixth Principal Meridian, City of Lawrence, Douglas County, Kansas, being more particularly described as follows:
Commencing at the Northeast corner of said Section 7; thence along the North line of the Northeast Quarter of said Section 7; South 89 degrees 01 minutes 32 seconds West, (Being an assumed bearing) 1262.51 feet; thence South 01 degrees 37 minutes 57 seconds East, 134.08 feet to the POINT OF BEGINNING; thence North 88 degrees 36 minutes 08 seconds East, 25 feet; thence South 01 degrees 37 minutes 57 seconds East, 10 feet; thence South 88 degrees 36 minutes 08 seconds West, 25 feet; thence North 01 degrees 37 minutes 57 seconds West, 10 feet to the POINT OF BEGINNING, containing 250 Square Feet.
Motion was seconded by Gaughan and carried 3-0.
ACCOUNTS PAYABLE 12-07-11
Flory moved to approve accounts payable in the amount of $230,178.14 to be paid on 11/08/11. Motion was seconded by Gaughan and carried 3-0.
MISCELLANEOUS 12-07-11
There was a discussion on the need to adjust boundaries on the Commission district maps due to the 2010 Census results. Revised maps will be placed on a future agenda for discussion.
Flory moved to adjourn the meeting; Gaughan seconded and the motion carried 3-0.
_________________________ ____________________________
Jim Flory, Chair Mike Gaughan, Vice-Chair
ATTEST:
________________________ __________________________
Jamie Shew, County Clerk Nancy Thellman, Member
Time and Date