Meeting Information
6:35 p.m.
-Consider approval of the minutes for February 27, March 13, and May 15, 2013.
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders;
(b) Amend zoning regulations to add NanoBrewery as a conditional use permit to the zoning regulations (Linda Finger);
(c) Consider authorizing the Sheriff to complete the purchase of (1) 2013 Ford Policy Interceptor Utility vehicle.(Ken McGovern)
REGULAR AGENDA
(2) CUP-13-00126: Consider an amended Conditional Use Permit for a revised phasing schedule for Big Springs Quarry, located at 2 N 1700 Rd. Submitted by Mid-States Ventures, LLC, for Bonnie M. Nichols, Trustee, and Mid-States Materials, LLC, property owners of record. Big Springs Quarry was approved with Conditional Use Permit CUP-7-2-90. Mary Miller will present the item.
(3) Consider waiving plat access restrictions for Holladay Subdivision, located southwest of N 800/E 1550 intersection (Keith Browning)
(4) Consider agreement with KDOT for reimbursement of material costs for maintenance of local roads near US-56 highway closure (Keith Browning)
(5) (a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
-Douglas County Emergency Management Board 07/13
(c) Public Comment
(d) Miscellaneous
(6) Adjourn
Gaughan called the regular meeting to order at 6:35 p.m. on Wednesday, June 5, 2013 with all members present.
CONSENT AGENDA 05-29-13
Gaughan moved approval of the following Consent Agenda:
► Resolution 13-13 of the Board of County Commissioners of Douglas County, Kansas adopting text amendments to the Zoning Regulations for the unincorporated territory of Douglas County, Kansas which included adding NanoBrewery as a Conditional Use Permit to the Zoning Regulations; and
► Authorized the Sheriff to complete the purchase of (1) 2014 (corrected from the memo request for a 2013 model at the price 2013 price) Ford Police Interceptor utility vehicles in total amount of $25,263 utilizing the MACPP joint vehicle bid with Shawnee Mission Ford.
Motion was seconded by Flory and carried 3-0.
PUBLIC WORKS 06-05-13
The County Commissioners considered a request to waive the plat access restrictions for Holladay Subdivision, located southwest of N 800/E 1550 Road intersection. Keith Browning, Director of Public Works, presented the item.
When the subdivision was platted in 1983, the Commission at the time approved shared entrances onto E 1550 Road between Lots 2 and 3, Lots 4 and 5, and Lots 6 and 7. Lots 3, 5 and 7 currently have individual entrances. Lot 6 was divided between Lots 5 and 7. The owner of Lot 4 requests an individual residential entrance. All lots meet the current frontage requirements for individual residential access onto E 1550 Road.
Gaughan opened the item for public comment. No comment was received.
Flory moved to approve Resolution 13-14 modifying access restrictions on the plat for Holladay Subdivision and allowing individual entrances for Lots 2, 3, 4, 5 and 7.
PUBLIC WORKS 06-05-13
Gaughan moved to approve an agreement for reimbursement from the Kansas Department of Transportation for material costs for Highway 56 closure which include reimbursement to the County for the purchase of road surfacing aggregate, dust control and metal culverts for use on E1400 Road, N400 Road, E1500 Road, E1600 Road and N200 Road. The Secretary shall reimburse the County for the purchase of 840 tons of road rock up to $6,300, replacement culvert costs of $4,158.38 and 37,700 linear feet of dust control up to $34,420. The Secretary agrees to make partial payments to County for amounts not less than $1,000 and no more frequently than monthly. Such payments will be made after receipt of proper billing. Motion was seconded by Thellman and carried 3-0.
PLANNING/CUP 06-05-13
The Board considered an amended Conditional Use Permit (CUP-13-00126) for a revised phasing schedule for Big Springs Quarry, located at 2 N 1700 Road. The application was submitted by Mid-States Ventures, LLC, for Bonnie M. Nichols, Trustee, and Mid-States Materials, LLC, property owners of record. The Big Springs Quarry was approved with Conditional Use Permit CUP-7-2-90. Mary Miller, Lawrence-Douglas County Metropolitan Planning Staff, presented the item.
Miller gave a background presentation on the history of the quarry and then showed maps of the current reclaimed status of the quarry. She discussed the notification process and comments received by surrounding property owners. Concerns received included the owners wanting to be able to anticipate the phasing so they can make decisions on their property based upon quarrying stages. Some felt there should be no amendments to CUPs. On March 27, 2013, the County Commission sent the item back to the Planning Commission, on a 2-1 vote, for consideration on the phase sequencing and to return a recommendation to the County Commission. On May 20, 2013, the Planning Commission denied the request to revise the phasing for the CUP on an 8-2 vote.
Staff makes no recommendation but provides the following list of options for the Planning Commissioner's recommendation to the Board of County Commissioners based on the following findings of fact:
I. Zoning and uses of property nearby. Nearby property is zoned A (Agricultural) and is used predominately for agricultural purposes. Other uses in the area include scattered farm/rural residences; a platted subdivision which has not yet been developed, zoned A-1 (Suburban Home); and a hunting/shooting facility to the east, permitted as an agricultural use. The quarry extends into Shawnee County to the west which has similar zonings and land uses. (Figure 1) The quarry is an existing use which is compatible with the development in the area with the conditions and restrictions of use applied to the CUP.
II. Character of the area. The quarry is located in a rural area with predominately agricultural land uses and scattered farm/rural residences. A hunting/shooting facility is located nearby; however, the predominate land use is agricultural grassland and row crops. Hwy 40 and Interstate 70 traverse east/west through the area approximately a mile north of the quarry site. The quarry is an existing use which is compatible with the development in the area with the conditions and restrictions of use applied to the CUP. The proposed revised phasing would not alter the quarry's nature so it would remain compatible with the character of the area.
III. Suitability of subject property for the uses to which it has been restricted. A Conditional Use Permit (CUP) d s not change the base, underlying zoning. A quarry is a permitted use in the A District when approved through the Conditional Use Permit process. The property is suitable for use as a quarry due to the fact that limestone reserves are present. The request to revise the phasing schedule d s not alter the suitability of the property for uses permitted in the A (Agricultural) Zoning District.
IV. 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 Conditional Use Permit for the quarry was approved in 1990. The property is currently being quarried, and has been developed with a rock crushing plant and a shop.
V. Extent to which removal of restrictions will detrimentally affect nearby property. The revised phasing schedule should have no negative impact on nearby properties as there are no physical changes being proposed to the quarrying activity.
VI. Relative gain tot eh 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 landowner. The denial of the request would maintain the original expectation that surrounding land owners may have planned for relative to the use and enjoyment of their own property. The denial of the request would require the operator to proceed in the phasing sequence established with the original application and would prohibit them from coordinating quarrying activities on both sides of the county line. Approval of the request would result in a more efficient means of operation for the southern portion of the quarry. The comparison is between the loss of efficiency for the quarry operator with denial of the request and the loss of predictability for property owners with approval of the request.
VII. Conformance with the comprehensive plan. The conditions and restrictions of use associated with the CUP permitting this quarry ensures the responsible use of a marketable natural resource. The change being proposed will not alter the extraction and reclamation methods and is in conformance with the Comprehensive Plan.
AND the following list of options recommended by staff:
1) Approve the revised phasing to allow the operator to coordinate quarrying activities between the portions of the quarry on each side of the Douglas County/Shawnee County line.
2) Deny the revised phasing to maintain the predictability as to the sequencing of the quarrying operations for the benefit of surrounding property owners.
Gaughan opened the item for public comment.
John Hutton, representing Mid-States, stated in almost 30 years of mining, the topic of phasing has come before the Commission three times. In 1992, the Commission approved the addition of Phase 1A. This resulted in an obvious delay of quarrying and changed the phasing sequence. When the applicant came to planning staff to discuss the submission of a reclamation plan, the subject of phasing order came up. The phasing was never referred to as an amendment. Hutton discussed how there is no time certainty or predictability on when quarrying will take place. In 1992, when the rephrasing was approved, Phase 4 which is located next to Lone Oak had not been mined and 21 years later it still has not been mined. The economy determines how much rock is needed and how fast the phases move along. He said staff can make sure all the conditions are being met during the CUP. Mid-States has gone above the call of duty to meet these conditions. Hutton said his client has spent hundreds of thousands on this quarry and has also received the Governor's Award for reclamation so they must be doing a good job. He stated this is a first class operation and continues to compete against other quarries that are less regulated. Hutton said he feels the neighbors have not explained how the certainty argument impacts their lives on a real basis. The neighbors that have complained have tried to paint this as a big company vs. small neighbor situation but other property owners, like the Nichols, who own some of the quarry land, have rights too and a stake in the outcome.
Flory said he finds nowhere in the documents that a prior Commission established a time table for the completion of the quarrying of the various tracts, and he asked Hutton if that is correct. Hutton responded that is correct, other than the 30-year window. Flory said it is his understanding there is nothing in the CUP that prohibits the applicant from focusing all his quarrying in Shawnee County and suspending his work in Douglas County for five-years, then resuming work in Douglas County. Hutton said that also is correct. Flory said he feels this is important to establish the County has no control over the timing of the mining.
Thellman asked Hutton what his client's expectation in regards to completing of mining by 2020. Hutton stated his client intends to do what they can based upon market forces then make another decision closer to 2020 as to what option he wants to explore with this Board. It makes sense for his client to ask for an extension if the mining is not completed by 2020.
David Henry, 4311 SE 24th Court, Tecumseh, Kansas, said he owns property adjacent to quarry north of Phase 5. Henry said there is an 80 acre tract between his property and the actual quarry property. He asked the Board to reject the request to revise the phasing as the revision would delay the mining of Phase 5 and disrupt his retirement relocation to the family farm.
Flory clarified there is 80 acres owned by Mid-States, that is between the CUP border and Henry's property. Henry said "yes" there is a quarter mile between his property and the quarried property (owned by Mid-States); and at one point there was a request to mine the 80 acres, but the request was later dropped.
David Buffo, representing Lone Oak LLC, said in response to the 1A added phasing in 1992, it is his understanding that was to be the only rephrasing allowed. He feels the request to re-phase in 1992 is different than what is being requested today. That was a request to add land to the quarry. It is his understanding the Board wanted guidance from the Planning Commission on how to proceed giving the public a chance to speak. The Planning Commission responded with an 8-2 vote to deny the applicants request to change the CUP. Buffo asked that the Board follow the guidance given by the Planning Commission. He said there has been a lot of talk about uncertainty and granted we do not know what will happen tomorrow. But when Lone Oak invested in their property they relied upon the CUP to obligate the quarry to move in phases. Buffo said he is not asking Mid-States to change their business, just to proceed in order. He would like a better explanation for why Mid-States wants to skip to Phase 6. He feels a denial will not disrupt their business and asked the Board to uphold the CUP.
Bart Christian, Lone Oak LLC, stated his home is within 300 feet of the quarry. He said he needs closure. He feels the rephrasing will have a direct peril affect on selling his property. Christian said he has spent hundreds of thousands of dollars fighting this quarry because he feels they have falsified documentation accepted by the County. He said he would be debt free if he didn't have to fight the quarry. He asked the Board to follow the phasing stated in the CUP.
Robert Best, property owner directly south of Phase 6, asked the Board to deny an amendment to the CUP. Best said when bought his property he looked at the CUP documents to assure there would be no landfill issue. He knew a quarry would be there, but he wants Mid-States to follow sequence.
Tony Zemek, Lone Oak LLC, looked at the CUP before buying into the Lone Oak property. He asked for phasing to continue in consecutive order.
Patty O'Conner, property owner directly east of Phase 3, said quarrying has been going on for 20 years. She said she was under the impression the quarry would be quarried in phases in consecutive order. She stated concerns about proper signage locations and the possibility of her cattle wandering onto quarry property due to an open gate. She opposes a change in rephrasing.
Hutton responded to O'Conner's concerns about signage, gates and fencing by telling her to contact Mid-States staff for a resolution. He responded to Buffo's comment that the "rephrasing will not save his client any money." Mid- States wants to mine in Phase 6 and in Shawnee County at the same time using the same road because it is more efficient and more profitable.
Thellman asked if Mid-States moved to Phase 6 would the Nichols will still receive royalties. Hutton said the Nichols own the property in Phase 6 but do not own property in all phases.
Thellman asked if there is a sense of how much time it would take to quarry Phase 4. Hutton said he d s not have an answer.
Gaughan asked Miller to walk him through the conditions of the permit for the phasing. Miller said the order of phasing was not a condition by the Planning Commission or County Commission of the CUP. It was a self-imposed condition incorporated by reference with condition 19 to include everything in the bound application into the conditions. They would start with one and end with six, and there would be six phases.
Flory stated this request was initiated according to what he found in the documents. On February 4 Mid-States provided their notice of intent to quarry Phase 6 following completion of Phase 3 and provided staff their reasons for doing to. It wasn't phrased as a request for amendment or revisions. It was just a notice of intent. Planning Staff notified the Board of County Commissioners of the Mid-States notification request and placed the item on the County agenda for March 6, 2013. At the request of Mr. Buffo, who wanted more time, the Board referred the item to March 27. The Board had a hearing and accepted considerable comment. On a divided vote, the item was sent back to Planning Commission for consideration. Flory said his view at that time was that the item wasn't an issue that needed to go back to the Planning Commission because it wasn't an amendment based on his reading of the documents. It wasn't even a revision of any requirement. If you thoroughly look at the Planning Commission minutes, they voted 8-2 to deny.
But there was considerable confusion as to why the Planning Commission even had the item. Flory said he d sn't feel the Board gave the Planning Commission significant direction on what the County Commission wanted them to consider. A couple of the more experienced Commissioners on the Planning Commission stated repeatedly "this is a matter for the Board of County Commissioners." Flory stated he agrees with that statement. The only real question for this Commission and appropriate for consideration is "Would Mid-States commencing quarrying operations in Phase 6 prior to completion of Phase 4 and Phase 5 violate the conditions set out in the Conditional Use Permit without amending the CUP1/2" That is the only question to look at. Flory said after having reviewed the language in the CUP, especially sections 7 and 8, which are the provisions relating to phases of reclamation, his conclusion for "phases" is that the clear intent was not to set out an ordering sequence, but solidify out of the acreage being dedicated to the quarrying operation and being given a CUP, it was necessary that only portions be quarried at any given time and that reclamation of the previously quarried tracks be accomplished so we don't end up with 700 acres of mined territory and get no reclamation. Flory said he feels that is the absolute clear intent of why there were phases. Phases should not have been the term used. Perhaps "tract" was more appropriate. He feels the neighbors have concluded that "phase" means a required numerical sequencing. Flory said he d s not find that language in the CUP. It d s not mandate completion of quarrying in any particular order. What is d s require is submission of detailed reclamation plans and the timely completion of reclamation when moving from one phase to the subsequent phase (as stated in the CUP). The CUP clearly limits the number of acres open for mining and extraction at any one time and establishes clear bonding requirements regarding each tract. Flory stated in his mind that is the clear intent of having Phase 1, 2, 3, 4, 5, 6, tract 1, 2, 3, 4, 5, 6, parcel 1, 2, 3, 4, 5, 6 or whatever we want to call it. The clear intent was the Commission wanted to ensure the process was orderly and most importantly to avoid a large landfill situation being created, that the reclamation was orderly. Flory said it is important to note there is no express requirement the quarrying occur numerical from one to six. The view of the professional planning staff was there is no such requirement which is why they didn't consider it initially as an amendment, or even a revision; just information on what the applicant intended to do. If the Board of County Commissioners in 1990 wanted a certain order for quarrying based upon the map they could have included that. But it is not there. His second concern is the timing. There are no time periods set in the CUP. Flory said that could easily have been included in the CUP, but was not. Flory said in his view, when the government purports to prescribe unlawful activity or to regulate lawful activity, which is the case we have here, the burden is on the government to be clear and unequivocal so the people that are subject to the laws and the regulations do not have to guess what they have to do to comply. There is nothing in this CUP the prohibits Mid-States from quarrying any of the phases or tracts in the order they deem appropriate as long as they comply with all of the reporting, bonding and reclamation requirements which is what we as a governmental agency should be most concerned about. He concluded that the proposed action before the Board d s not violate the CUP and d s not require an amendment and he said he feels this body should take no action.
Gaughan asked Miller how an amendment would be recorded. Miller replied, "it depends." If the Board determines there is nothing to amend there would be a memo in file. If there was an amendment we would amend condition 19 where it says they plan to quarry in phases. The Board would add they intend to quarry sequentially; or staff would revise Condition 19 to say everything would apply and add a special condition that says it is not necessary to phase sequentially.
Flory added the Planning Commission minutes mentioned an actual amendment which changed the number on the phases would be problematic.
Gaughan stated his concern is over the labeling of Tracts versus Phases being worded differently throughout the CUP. He feels in the original Martin Marrietta application there was a clear distinction between the wordings. Somewhere along the way labels were used interchangeably, even using the term "area." Gaughan said as you follow the documents everything disappears except for the term "phase." Gaughan asked if an amendment is required, what it would be. The inclusion of Phase 1A is a change in sequence and not so different then what we are asked to do know.
Miller replied if the decision were made that this is an amendment, you would make a change to Article 19 reflecting the applicant d s not have to quarry in sequential order or set a specific condition which d s establish an order.
Gaughan said there is no phasing requirement but a requirement to review the plan every five years. A plan is a plan. He asked why we would require the review if we never anticipated the plan to change. The applicant adjusts to conditions of the economic environment. He feels we should put a clarification in the language so there is no misunderstanding so we don't have to address this again. Miller said at one time the terms phases, tracts, and areas were all used. But over time, staff has interpreted the wording variations to mean phases.
Thellman said she d s not read the original document as black and white as Commission Flory stated. She feels the original intent of the phases was meant to be sequential. What strikes her more is the wording that Phase 5 is to the north and the last phase is phase 6. She feels that provides the expectation of mining sequentially. She agrees the company has tried hard to be a good neighbor and received an award for superior reclamation work. She senses there should be direction for sequential activity through the quarry. Thellman said she see a neighborhood that has lived through this quarry and expects a light at the end of the tunnel and needs some predictability.
Flory said 2020 is still coming and this whole thing will be a new ballgame. This is up to the Commission now.
Thellman stated she feels people have purchased their land reading the same documents the Board has but with a laid person's eye which appears to have six phases. She interprets that to mean sequential phases. Thellman stated there were other lawyers on the Planning Commission that also wrestled with this dilemma. Her preference is to follow the plan as written. But, it appears the other two Commissioners are willing to move forward with a change in sequence. She noted it appears the Nichols family will be compensated by the quarry for other phases and will not be harmed by following the plan.
Gaughan asked about the language of the five-year plan under condition 8. He read as follows: Reclamation reviewed the first year of operation and every five years thereafter the applicant shall submit a detailed report and plan of operations to the Planning Office indicating the phasing of quarry operation. He asked Miller if the point of that statement is it could never be reconsidered. Miller replied the reason for that statement is so the Planning office will know where the applicant is in the mining process to that can be tracked. Sometimes quarries set idle for 20 years.
Flory said again his view is it is not an amendment. However if staff feels amending is the best way to handle this there is a legitimate business rational for a relative minor amendment especially in conjunction with the Shawnee County operations that would benefit the entire community economically. If there needs to be an amendment that basically states phasing can be done in any order as long as the County is kept apprised, and they comply with all of the notification prior to commencing quarrying operations in a particular phase, and reclamation prior to the quarrying in a subsequent phase, he said he is willing to vote on an amendment.
Bart Christian stated Shawnee County has quarried 20 years the same as in Douglas County. He feels there will never be closer if allowed to change the phasing.
Gaughan stated he wants to complete the amendment using the wording Flory suggested. But quarrying still needs to be done phase per phase.
Miller suggested the following wording: The remaining phases of the quarry, 4, 5 and 6 may occur in any sequence provided that the reclamation review provisions of condition 8 would still apply. Flory added that "nothing herein shall change any phasing requirement in any other portion of the Conditional Use Permit."
Thellman asked if there are other operators that will view this as precedence for changing the order of what they are quarrying. Flory responded "no" because this quarry is the most conditioned and regulated quarry in Douglas County, if not the state of Kansas.
Gaughan added this is not the first time the County Commission has allowed reordering of phasing.
Flory asked for clarification that 1A didn't just cause a reordering of the phasing but actually added property to the CUP. Miller stated that is correct.
Gaughan moved to amend CUP-13-00126 to include the following language: The remaining phases of the quarry, 4, 5 and 6 may occur in any sequence provided that the reclamation review provisions of condition 8 would still apply; and that nothing herein shall change any phasing requirement in any other portion of the Conditional Use Permit.
Before seconding the motion, Flory asked Mr. Hutton and Mr. Buffo if they understand that by making this amendment or change that all other conditions, bonding, reclamation, and everything else in the Conditional Use Permit is applicable to the phases as they occur. Mr. Hutton and Mr. Buffo agreed.
Motion was seconded by Flory and carried 2-1 with Thellman in opposition.
Note: The Board determined if there is a request for a setback change, this would need to be discussed with the County Counselor and brought back to the Board for consideration for an amendment though there is no violation at this time. Staff is to following up with information to the Board. Hutton asked if there is communication or request for a setback that he be notified.
ACCOUNTS PAYABLE 06-05-13
Gaughan moved to approve accounts payable in the amount of $257,318.19
to be paid on 06/06/13. Motion was seconded by Flory and carried 3-0.
APPOINTMENT 06-05-13
Flory moved to appoint Sarah Plinsky, as the County representative to the Tiny Kay Board. Motion was seconded by Gaughan and carried 3-0.
APPOINTMENT 06-05-13
Thellman moved to reappoint Bob Newton, as the Douglas County appointee to the Douglas County Emergency Management Board for a one-year term to expire 07/04/14. Motion was seconded by Gaughan and carried 3-0.
Gaughan moved to adjourn the meeting; Flory seconded and the motion carried 3-0.
____________________________ ____________________________
Mike Gaughan, Chair Nancy Thellman, Vice-Chair
ATTEST:
____________________________ _____________________________
Jamie Shew, County Clerk Jim Flory, Member
Time and Date