Meeting Information
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders;
(b) Consider approval of a resolution prohibiting the use of engine braking on portions of N 1000 Road for the duration of the construction of the South Lawrence Trafficway with recommended revisions from the 10-15-14 Commission meeting (Craig Weinaug); and
(c) Consider approval of the FY 2014 Community Corrections Year End Outcome Report
(Deborah Ferguson)
REGULAR AGENDA
(2) Consider a contract with Treanor Architects for the jail expansion (McGovern/Weinaug)-Backup to follow
(3) (a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
-Board of Zoning Appeal (2) eligible for reappointment 10/2014
-Building Code Board of Appeals (1) eligible for reappointment 12/2014
-Fire District No. 1 – 12/2014
Jayhawk Area Agency on Aging Board of Directors – (2) vacancies
Jayhawk Area Agency on Aging Tri-County Advisory Council – (2) vacancies
(c) Public Comment
(d) Miscellaneous
RECESS
RECONVENE
6:35 p.m.
(4) CUP-14-00304: Consider a Conditional Use Permit for Central Soyfoods LLC, a Value Added Agriculture use, at 1168 E 1500 Rd. Submitted by David Millstein, property owner of record. (PC Item 3; approved 10-0 on 9/22/14) Mary Miller is the Planner.
(5) Adjourn
Thellman called the regular meeting to order at 4:00 p.m. on Wednesday, October 22, 2014, with all members present.
CONSENT AGENDA 10-22-14
Thellman moved approval of the following Consent Agenda:
► Commission Order No.14-042 (on file in the office of the County Clerk);
► Home Rule Resolution HR-14-10-4 prohibiting the use of engine braking on portions of N 1000 Road; and
► FY 2014 Community Corrections Year End Outcome Report Signatory Approval Form.
Motion was seconded by Gaughan and carried 3-0.
SHERIFF/JAIL 10-22-14
The Board considered a contract with Treanor Architects for the jail expansion. Ken McGovern, Douglas County Sheriff, presented the item.
Flory moved to approve a contract with Treanor Architects in the following amounts:
• Phase I – Needs confirmation: A lump sum to be determined, not to exceed $75,000;
• Phase II – Benchmarking - $14,5000
• Phase III – Concept Design - $72,250
• Phase IV – Operational study - $12,900
• Phase V – Architectural services – 7.4% of the Cost of Construction as determined upon completion of the Design Development Phase.
with the understanding that at some point consultants will be reporting back to the Commission on recommendations on Phase I. Motion was seconded by Gaughan and carried 3-0.
ACCOUNTS PAYABLE 10-22-14
Thellman moved to approve accounts payable in the amount of $251,922.45 be paid on 10/23/14. Motion was seconded by Gaughan and carried 3-0.
RECESS 10-22-14
At 4:15 p.m., Thellman moved for the Board to recess until 6:35 p.m. Motion was seconded by Gaughan and carried 3-0.
RECONVENE 10-22-14
At 6:35 p.m., the Board returned to regular session.
PLANNING 10-22-14
The Board considered CUP-14-00304, a Conditional Use Permit for Central Soyfoodsfoods LLC, a Value Added Agriculture use located at 1168 E 1500 Road. The application was submitted by David Millstein, property owner of record. Mary Miller, Lawrence-Douglas County Metropolitan Planning Staff, presented the item.
Thellman disclosed face-to-face meetings with Willis Long, Quinn Miller, and David and Susan Millstein.
Miller stated the CUP is for an application for a value-added agricultural use on five acres of land on the east side of E 1500 Road. Specifically, the applicant plans to turn a vacant residence into a soy food processing facility. The land use in the general area is primarily agriculture and rural residential. The applicant plans to add a loading dock to the structure and construct a 500 bushel bean bin to the east of the structure reducing the need for frequent deliveries, and a gray-water lagoon to handle water from the soybean processing. The lagoon would have to be properly permitted and installed prior to commencement of the CUP. Upon a site visit to the current business location, staff could not hear the machinery from the outside of the building. Miller referred to the business as being “micro sized” based on the size of the equipment. Staff recommends no more than two truck deliveries per week. Given the proximity of this property to the surrounding neighbors, staff compared the standards for both the value-added agriculture and Home Occupation businesses. It was noted this would not be an ag exempt building and therefore would require a commercial building permit, and they must comply with the building codes. No onsite retails sales will be permitted as the product is not grown and produced on site. It was also noted this was a non-conforming lot, but considered a “vested” property, which was created under the previous subdivision standards. The property may not be compliant to today’s standards, but the applicant has a vested right for a building permit. In Section 11-101(e)24, the Subdivision Regulations explains vested properties, a vested property may be used for single-family residence or any use permitted in the district. The property could be used for a residence, Home Occupation or Conditional Use when approved by the County Commission.
Flory asked if this means there is a vested right to any use even if it’s a use that requires a CUP. Miller stated that is correct. The property can be used for any use permitted within the district. This usually refers to uses that just require a site plan and uses permitted by “right.” If you don’t specify, it would just be any use, including Conditional Uses which would require County Commission approval.
Flory stated concerns that the Planning Commission minutes did not reflect much discussion concerning non-conforming use.
Miller stated there were public comments concerning the minimum site area that would be permitted. The Value Added Agricultural Business standards for site area read: “A minimum site area is consistent with the County adopted policy for agricultural uses.” It was suggested by the public to use the height, bulk and area dimensional standards in Article 18 of the Zoning Regulations. However, this does not comply with the standard because the standard applies to agricultural uses which are exempt from the Zoning Regulations, plus it’s a vested parcel. The draft language proposed with the Value Added Agricultural Business text amendment to the zoning regulations stated a minimum site area of 40 acres. This was revised at the Planning Commission meeting to the current standard. Miller said if you raise all of your commodities on your property then you do not need a CUP. You can have a Value Added Ag Use, but it is really just an Ag Use. If you don’t raise all your commodities on site then you do need a CUP.
The current language noted in the Planning Commission minutes stated the requirement as ‘minimum site area is consistent with the County adopted policy for agriculture uses’.
Thellman asked how you lose your “vested” property. Miller replied you sell a piece your property which changes your legal description.
Miller noted public concerns regarding an FDA warning letter sent to the Soyfoods facility, and with the property owner’s maintenance of the property.
Miller stated tonight the Board can do one of the following: approve the CUP application with conditions or without additional conditions; deny the CUP request; or return the CUP request to the Planning Commission with direction for additional consideration. Miller pointed out that due to the protest petition, a unanimous vote would be required for approval.
Staff recommends approval of the Condition Use Permit, CUP 14-00303, for Value Added Agriculture based on the following findings of fact:
I. Zoning and used of property nearby. The area is rural in character and is zoned A (Agricultural) District with land to the north along the Wakarusa River also being zoned V-C (Valley-Channel) District and F-F (Floodway Fringe Overlay) and F-W (Floodway Overlay) Districts. Surrounding uses are predominantly rural residential and agricultural. A Value Added Agriculture Use could be compatible with the existing uses if conditions were applied to the use to insure compatibility with nearby residences.
II. Character of the area. This is an agricultural area with rural residences. A city wastewater treatment plant will be located on a 530 acre lot to the east, but the majority of this lot will remain in agricultural production. County Route 1055, a principal arterial, provides access through the area. A Value Added Agriculture use should be compatible with the character of the area.
III. Suitability of subject property for the uses to which it has been restricted. The property is suitable for the uses which are permitted within the A (Agricultural) District. The property is also suitable for the proposed Value Added Agriculture use, a soybean processing facility, when approved as a Conditional Use, given the small scale of the facility.
IV. Length of time subject property has remained vacant as zoned. The subject property was developed with a 1,756 sq ft residence in 1989. The proposal is to convert the existing structure into a soybean processing facility.
V. Extent to which removal of restrictions will detrimentally affect nearby property. The use is small scale and very similar to a Type II Rural Home Business Occupation. Applying the standards of a Type II Rural Home Business Occupation to the facility should insure compatibility with nearby residences.
VI. 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. In staff’s opinion, the approval of this request, with the Type 2 Home Business Occupation standards will result in a compatible project that will not harm the public health, safety or welfare. Denial of the request would prevent the relocation of the soy food processing facility to this location.
VII. Conformance with the comprehensive plan. A Conditional Use Permit can be used to allow specific uses that are not permitted in a zoning district with the approval of a site plan. This tool allows development to occur in harmony with the surrounding area and to address specific land use concerns. As conditioned, the proposed use is in compliance with the Comprehensive Plan.
The CUP is recommended for approval subject to the following conditions:
1. The following standards shall apply to the use:
a. A maximum of 4 full-time equivalent employees are permitted.
b. The structure in which the use is conducted may be up to 3,600 sq ft.
c. No equipment that creates noise, vibration, electrical interference, smoke or particulate matter emission perceptible beyond the property lines or in excess of EPA standards is allowed.
d. All equipment and materials used in the business must be stored indoors.
e. No retail sales of products shall occur on the site.
f. Deliveries from trucks with a GVWR (Gross Vehicle Weight Rating) of more than 5 tons are limited to no more than 2 per week. This does not apply to incidental deliveries such as Fed Ex and UPS.
2. Provision of a revised CUP plan with the following changes:
a. General CUP notes added per Planning approval.
b. Parking area expanded to 5 parking spaces, with one being ADA accessible, and dimensions of the parking area noted on the plan.
c. Evergreen trees added to screen the south side of the parking area.
d. Location of holding pond/lagoon shown on the plan.
e. Standards listed in Condition No. 1 noted on the plan.
f. Addition of the following note: “The Conditional Use Permit will be administratively reviewed by the Zoning and Codes Office in 5 years and will expire in 10 years from the approval date noted on the plan unless an extension is approved by the County Commission prior to that date.”
David Millstein, property owner, stated this property looks like a good location for the business. He asked his realtor if it would be possible to put a business there when he purchased the property. He was informed by the realtor he would have to go through hoops with a CUP, but there is a probability, so he purchased the property. Millstein said the business works 13-14 days per month with normal business hours making tofu. The byproduct of the business is used for fertilizer in Douglas County. The production process uses a lot of water so that is why a lagoon would be necessary. Millstein said the lagoon would be used only for gray water from the soybean processing, a septic system would be used for other waste water. He said another lateral field could be installed as opposed to a lagoon if the neighbors prefer it.
Gaughan asked what the basic traffic count would be. Millstein responded five people 20 hours per week. There are two deliveries to Kansas City and one to Lawrence per week. He said the business receives two deliveries per week, but with the bean bin this could be reduced to approximately two soybean deliveries per year. Sometimes there will be an occasion Fed-Ex delivery.
Thellman opened the item for public comment.
Terry Liebold, attorney representing Willis and Linda Long, showed a drawing of the Long’s property and its proximity to the proposed site. Liebold stated the applicant owns an 80 acre tract near Baldwin City and he questioned why the applicant doesn’t want the business on his own property. He stated his clients purchased their residence next to a residential property. The applicant wants to change that to an industrial site. He questioned that the minimum site area under the County Code to be the same for a commercial use as is for agriculture. In his opinion, the minimum site area would be what the bulk area and height restrictions are in the County. In that case, according to Liebold, for an agricultural site on an arterial road that would be 10 acres. He said under the Access Management Regulations the site should meet the minimum road access and frontage requirements of 1320 feet. This lot does not. There are some exceptions under the regulations for vested residential use, but this request is not for residential use. Liebold also said this 5-acre site is not appropriate for a Value Added Agriculture business. The site plan proposes a gray water lagoon. According to the Kansas Department of Health and Environment (KDHE) regulations, the lagoon must be 500 feet from any residence and it must be 100 feet from the lot lines. Though these are KDHE rules, Liebold feels this explains why a 5-acre lot won’t work for this type of a business. The Long’s own property to the north and east of this site, and a lagoon may limit where the Long’s can build on their property.
Thellman stated Liebold is interchanging the words Industrial Use versus Residential Use. She asked staff if this Value Added Agriculture inside the building changes the use to industrial use or is it considered Valued Added Agriculture. Liebold said the applicant is applying for Value Added Agriculture designation but he considers this industrial because it will be similar to a facility that produces goods that can be sold. He feels it is a small industrial site, and it is a change in the use. He said in 2006 when this property was purchased, there was no Value Added Agriculture Use business allowed. He asked how that can be vested?
Gaughan asked staff to address that question.
Miller said the Subdivision Regulations say the applicant has a vested right to a building permit for a single family residence or any other use permitted in the zoning district. Miller said she interprets the previous Commissioners to mean a landowner could have any use permitted by site planning or by CUP. She stated as new uses are added, you are not restricted by what was in force at the time the property was developed. In 2006, Value Added Agriculture was not permitted, but it was added by text amendment to the zoning regulations as a permitted use with a Conditional Use Permit.
Willis Long, 1164 E 1500 Road, said he and his wife own property to the south, east and north of this lot. He feels this project has changed since he first heard about the proposed project. It started with 2-3 employees, and now it is 4-5 employees. He was told the structure would have a small micro kitchen, but it would be bigger than McDonald’s who produces over 1,000 burgers a day. He is concerned this will turn into an industrial park.
Walt James, 1152 E 1500 Road, owns property south of the Longs. He understands the tofu factory will have an impact on his property value, which could be substantial. The surrounding area is part of the “Right to Freedom” property designation and was part of the Underground Railroad. He is concerned an industrial site would impact that designation.
Roy Chaney, 1149 E 1500 Road, said he does not agree with the proposed tree screening of the parking lot nor does he feel the business is compatible with the neighborhood. Chaney said according the Planning Commission, the applicant cannot store products outside as it could encourage rats, but the owner is still doing that at his current location. He claims Millstein has not kept up the proposed site with mowing and improvements, so he is concerned maintenance will continue to be ignored.
Quinn Miller, 1512 1175 Road, stated the County is being asked to fit a square peg in a round hole. He understands times are changing in Douglas County but he feels we are forcing this project to fit in an area not suitable for this type of business. He said it is his understanding that if the CUP is approved and Central Soyfoods were to move, another Value Added Ag business would be allowed to take its place.
M. Miller responded a CUP can apply to a business or person, but normally the CUP goes with the land. It is the use that cannot change. If Central Soyfoods left, some other Value Added Ag business could come in and continue operation. Another type of business could not come in without going through the CUP process. The property could also return to residential.
Q. Miller asked if there are companies that make pickups from the Central Soyfoods site. Millstein responded there is a company from Manhattan that makes a pickup once a week.
Q. Miller asked if there is a limitation on the amount of rural water Central Soyfoods can use. Jim Sherman, Director of Zoning, addressed this question by responding it would depend on the distribution supply, piping size and engineering principles behind that. An average family of five uses about 10,000 gallons of water per month. Central Soyfoods estimates using 20,000 gallons.
Millstein stated he called the water district and clarified that the 20,000 gallons is an allowable amount of water usage.
Bob Lominska, 1954 Union Road, stated he is an investor in Central Soyfoods Foods and a member of the local Food Policy Council. He feels the business will be no more disruptive (regarding noise) than weaning calves or howling coyotes that are common to the area.
Jeremy Long, 11231 Lakeview Drive, stated his concerns about how the CUP would affect this parents’ (Longs) property value. He read newspaper articles describing Central Soyfoods production and its intentions to expand.
At 8:09 p.m., the Board took a five minute recess.
The Board returned to regular session at 8:15 p.m.
Linda Long, 1164 E 1500 Road, stated the Millsteins are not sole proprietors of Central Soyfoods; they are one of seven stockholders. She feels this is not a mom and pop type business or the Millsteins would move the business to their own property in Douglas County. However, the Millsteins want to build a new stand-alone industrial factory on five acres. It is merely an investment property to them and when they want to sell out they can. Long said the placement of the lagoon on the five acre lot could cause her property to be unbuildable.
Mike Manley, 1548 N 1175 Road, showed a 20-acre alternative location the applicants might want to consider surrounded by trees and next to an existing business. He feels CUPs are difficult to enforce and the Millsteins are not keeping up the property as it is.
Millstein responded the articles mentioned by the neighbors are 10-20 years old. He has no intention of expanding. He explained the business has gone through bankruptcy because they had too many employees and he explained the setup of the current investors. Millstein said, regarding the FDA warnings, there are two sides to every story. Central Soyfoods provides fresh tofu to the Lawrence and Kansas City area and they can increase business without adding employees or equipment. Millstein said they would love to have the facility on their property near Baldwin but the businesses and employees are in Lawrence. Their property is in the wrong logistical spot.
Flory moved to close the public hearing. Motion was seconded by Gaughan and carried 3-0.
Thellman stated she needs clarity on the 1) vested rights of the property; 2) the ability to change the use of the building and 3) the road frontage requirements.
Jim Sherman, Director of Zoning and Codes, said the County Counselor did look at this CUP. He didn’t form a definitive opinion, just agreed it wasn’t clear on the access management. There isn’t an open interpretation on the pre-existing, and non-conforming issues. The Commission can accept or deny based on usability of the site and how it fits with the neighborhood.
Flory stated in his opinion what this boils down to is since 2006 this five-acre parcel has been a non-conforming lot, with frontage less than what is required now by existing regulations. Existing use is grandfathered. When the Millsteins purchased this in 2010 the existing use was grandfathered as residential. Flory said what he struggles with is changing the use of the property from residential to commercial. You can call it value added agriculture or industrial production all bringing a commercial aspect to a residential/agricultural zoning district. Planning staff talked about the Home Occupation permit and its stringent requirements being applied. However, Home Occupation requires someone living there overseeing the property. It makes a difference and would eliminate some of the fears of the existing property owners. There is no onsite resident proposed. It is purely a business operation and the request is to locate it in an agricultural residential area. He noticed in the Planning Commission minutes, several of the Planning Commissioners noted similar concerns about having a minimum site area, a vested parcel with minimum frontage requirements. Flory said he got the opinion the Planning Commission did not feel those questions were for their deliberation. Flory said the questions are definitely for the County Commissions deliberation because they’re the minimum site areas that we have either imposed or failed to impose. The minimum frontage requirements we clearly imposed. The question is whether the minutes from a Commission meeting before any of the present Commissioners were on the Board should be sufficient to more or less waive the requirement. Flory said he does not find that prior discussion persuasive. We are faced with a valid protest petition of about 71% of the people who live or own property in the area. He feels this is a great business and good for the community, but he doesn’t think that is the issue this Commission has to be concerned about. The question is where it should be located. The applicant has requested a use that is not available in the current zoning as a matter of right. Flory said he agrees you should have freedom, but that freedom is restricted a little bit when what you want to do isn’t available to you under the existing laws as a matter of right. The proposed change is clearly a change from residential or vacant residential to commercial. He sees the proposal as an expansion of the existing facility on what is considered a non-conforming lot. Basically you want to drop a commercial venture into a neighborhood. And, it’s a good commercial venture. Other comments Flory said he has heard is “if we deny this, we are discouraging other entrepreneurs.” He said that may be the case. But if we approve this by weaving our way through these requirements which are in the regulations but maybe not that clear and approve it, doing legal gymnastics to get there, we set a precedent for other individuals to find another non-conforming piece of property that’s small and residential and drop a commercial venture there. Sometimes you have to look at what is in the best interests of the entire community which might outweigh the neighborhood. Typically that is true when the whole community needs something like water, sand, gravel and rock. Flory said he doesn’t feel this is the case. He would like to get more clarity from legal counsel regarding whether the request is a right under the existing zoning, and whether the non-conforming parcel would meet the requirements for parcel size and road frontage requirements if the change in usage is allowed.
Gaughan stated some of the decisions or discussions in the past lead Mr. Millstein to the conclusion that leads us to tonight. When we make decisions we have to live with them and make some future Commission live with them. Gaughan said he would like to get a more definitive answer on what this vested question really allows. We need to determine what is allowed based upon the state of property. If that means seeking legal counsel and coming back for more discussion, Gaughan prefers to wait to make a decision based upon the results of that research. Gaughan said this is a type of small agricultural business we are encouraging. He doesn’t envision the industrial commercial scale. Gaughan said he envisions a small, 4-5 employee business in a small residential building that does not create a nuisance. Gaughan said he would like to support this agricultural business but would prefer to get a definitive response from the county counselor before setting a precedent.
Thellman stated it is clear the Commission will not reach a definitive decision tonight. We are at the point of directing staff to reach out to the county counselor to get clarity on the vested parcel and whether we have a true understanding of what is allowed on this parcel, the road frontage requirements and imposing requirements if treated as value added agriculture. She wants to make sure we have the right legal interpretation. The lagoon might be a moot point if the landowner is willing to put in a second lateral. Thellman said she tends to think this is a much lower impact operation than what the neighbors believe it to be. Thellman agreed to have the benefit of added legal counsel advice. The valid petition will require a unanimous vote for this application to move forward.
Thellman moved to table the item to the November 19, 2014 meeting at 6:35 p.m. for further discussion by the Commission after seeking guidance from the County Counselor. This meeting will not be a public hearing. The Commission will not receive any ex officio communication regarding this item. Motion was seconded by Flory and carried 3-0.
Thellman moved to adjourn the meeting; Gaughan seconded and the motion carried 3-0.
____________________________ ____________________________
Nancy Thellman, Chair Jim Flory, Vice-Chair
ATTEST:
___________________________ _____________________________
Jamie Shew, County Clerk Mike Gaughan, Member
Time and Date