County commission minutes, November 5-6
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November 19, 2012 |
***Monday, November 05, 2012, Commissioners met
in regular session with Chairman Ron Smith,
Commissioner Dan Dinning, Commissioner Walt
Kirby, and Deputy Clerk Michelle Rohrwasser.
Blue Sky Broadcasting Reporter Mike Brown was in
attendance of the meetings throughout the day.
Solid Waste Superintendent Claine Skeen and
Sharlene Delaney with Boundary Abstract joined
the meeting. Chairman Smith updated
Commissioners on the matter involving the
request made by the State of Idaho for an
easement on property near the landfill. Ms.
Delaney said Steve Moyer with North Star
Surveying has located a stake for the corner.
The easement will be 558 feet, which is where
the stake is located and this is well past 150
feet from where the gas monitoring well sits.
The well is on a knoll and the easement is on a
flat, according to Ms. Delaney.
9:00 a.m., Road and Bridge Superintendent Jeff
Gutshall joined the meeting to provide a
department report.
Chairman Smith said the state needs a way to get
to their property and this is a way to get back
to those properties. Chairman Smith briefly
mentioned property owner Roger Miller possibly
developing his property. Ms. Delaney said the
easement needs to be 60-feet wide and the state
doesn’t want to have limited access as they want
to have an all inclusive easement. Ms. Delaney
said the state is not building a county road.
Chairman Smith asked how to make sure Mr. Miller
has access listed on the final document, and Ms.
Delaney explained there will be a separate
easement deed from Mr. Miller to the state.
Chairman Smith said the only involvement with
Mr. Gutshall is where the state’s easement comes
off the county road. It was said the easement
could take off from the boundary line so it is
almost a straight shot from the county road in
front of the landfill.
Mr. Gutshall asked if there had been any
discussion about a trade for an easement on
Smith Lake Road. Commissioner Dinning questioned
if the property near the landfill is state
endowment land. Mr. Gutshall explained that Road
and Bridge is maintaining the road as far as the
Smith Lake Road. Ms. Delaney said her contact
person with the State of Idaho is Eric Besaw.
Ms. Delaney asked if the county will order the
appraisal. Commissioner Dinning asked if the
county will be reimbursed for the appraisal and
Ms. Delaney said yes.
Ms. Delaney and Mr. Skeen left the meeting at
9:15 am.
Mr. Gutshall provided a written report and
informed Commissioners that Road and Bridge is
working to finish up the Paradise Valley Hill
work. Mike Klaus with the Cabinet Mountain Water
District was also in the Paradise Valley area to
look at the issue of water under the road at the
junction of Blue Sky Road and Shamrock Road,
according to Mr. Gutshall.
Mr. Gutshall mentioned getting rock work and
culvert projects done. Road and Bridge has
hauled rock and did some grading on Mallard Road
and other than that Road and Bridge is catching
up on grading and patching. Mr. Gutshall
mentioned looking at the rock for the clinic
near the Hospital and the parking area for the
Restorium storage shed, and said that would
probably happen next week.
Commissioner Dinning mentioned being prepared
for winter and Mr. Gutshall said he will
probably have three sandboxes sitting in trucks
by the end of this week. Mr. Gutshall informed
Commissioners how long it takes to load plows
and sandboxes onto trucks.
The meeting with Mr. Gutshall ended at 9:30 a.m.
Commissioner Dinning moved to accept the
ambulance unit donated by Bonner County.
Commissioner Kirby second. Motion passed
unanimously.
Commissioners tended to administrative duties.
Commissioner Dinning moved to approve the
minutes of October 29 & 30, 2012. Commissioner
Kirby second. Motion passed unanimously.
9:45 a.m., Treasurer Jenny Fessler joined the
meeting.
Commissioner Dinning moved to cancel 2012 year
taxes totaling $239.92 for parcel
#RP63N01E293740A as the homesite should have
been removed previously. Commissioner Kirby
second. Motion passed unanimously.
Commissioner Dinning moved to cancel 2012 year
taxes totaling $80 and fees totaling $75.74 for
parcel #MH64N02E030800A as the Royal Dutchmen
5th wheel was licensed for 2012 so it cannot be
assessed. Commissioner Kirby second. Motion
passed unanimously.
Commissioner Dinning moved to cancel 2012 year
taxes totaling $53.24 and fees totaling $131.48
for parcel #MH62N01E15916AA as the mobile home
has been demolished. Commissioner Kirby second.
Motion passed unanimously.
9:46 a.m., Treasurer Fessler left the meeting.
Commissioner Dinning moved to adopt Resolution
#2013-7. A resolution to increase current
expense budget due to receipt of unanticipated
funds. Commissioner Kirby second. Motion passed
unanimously. Resolution #2013-7 reads as
follows:
RESOLUTION 2013-7
INCREASE CURRENT EXPENSE BUDGET
DUE TO RECEIPT OF UNANTICIPATED FUNDS
WHEREAS, the Board of County Commissioners,
County of Boundary, State of Idaho, did
establish an operating budget for the Current
Expense Fund for fiscal year 2012-2013, and
WHEREAS, $721.50 has been received from Patrick
and Ada Gardiner as payment for a transcript of
a Planning & Zoning hearing; and
WHEREAS, the Current Expense Fund for fiscal
year 2012-2013 is in need of this additional
revenue to pay to have the transcript done; and
WHEREAS, the addition of this revenue does not
affect the tax levy for Boundary County; and
WHEREAS, it is appropriate to increase the
Current Expense Fund Revenue Account Number
01-00-391-04 in the amount of $721.50 and the
Current Expense Clerk/Auditor Expense Account
Number 01-01-402-00, Salaries – Deputies, in the
amount of $721.50.
NOW THEREFORE, upon motion duly made, seconded
and unanimously carried,
IT IS RESOLVED that the increase in the Current
Expense Fund Revenue Account Number 01-00-391-04
in the amount of $721.50 and the Current Expense
Clerk/Auditor Expense Account Number
01-01-402-00, Salaries – Deputies, in the amount
of $721.50 is hereby authorized and ordered; and
IT IS FURTHER RESOLVED that the Clerk is
instructed to deliver certified copies of this
resolution to the Boundary County Treasurer and
the Boundary County Auditor.
DATED this 5th day of November, 2012
COUNTY OF BOUNDARY
BOARD OF COUNTY COMMISSIONERS
s/______________________________
RONALD R. SMITH, Chairman
s/________________________________
DAN R. DINNING, Commissioner
s/________________________________
WALT KIRBY, Commissioner
ATTEST:
s/_____________________________________________________
GLENDA POSTON, Clerk of the Board of County
Commissioners
Recorded as instrument #255584
10:00 a.m., Kootenai Tribe of Idaho Council
Chair Jennifer Porter, Kootenai Tribe of Idaho
Facilitator Patty Perry and Bonners Ferry City
Council member Tom Mayo joined the meeting.
The purpose of the meeting is to discuss the
Kootenai Tribe’s request to place specific
parcels of their land into Tribal trust. The two
properties in question are the Twin Rivers
property and a parcel near the Kootenai River
Inn.
Mr. Mayo asked why lots 1 and 2 of one of the
properties were not included and Ms. Perry and
Council Chair Porter said they did not have
figures on that to date. Mr. Mayo briefly
reviewed paperwork with Ms. Porter and Ms. Perry
as to what parcels are already included in trust
and which are not. Mr. Mayo said there is no
issue, but he thought something might have been
overlooked.
The meeting with Ms. Perry, Tribal Council Chair
Porter and Mr. Mayo ended at 10:10 a.m.
Commissioners tended to administrative duties.
10:30 a.m., Commissioners addressed the proposed
rental agreement with Pape′ Machinery for snow
removal equipment for airport use. Also
addressed was the Bill of Sale and Assignment of
Ground Lease for Hangar B-1 at the Boundary
County Airport.
Commissioner Dinning moved to sign the Bill of
Sale and Agreement of Ground Lease for Hangar
B-1 between Bill Heupel (assignor) and Dave and
Kimberly Parker (assignee). Commissioner Kirby
second. Motion passed unanimously.
Commissioner Kirby moved to sign the agreement
with Pape′ Machinery for rental of snow removal
equipment to be used by the Boundary County
Airport. Commissioner Dinning second. Motion
passed unanimously.
Commissioners tended to administrative duties.
11:10 a.m., There being no further discussion,
the meeting recessed until tomorrow at 9:00 a.m.
***Tuesday, November 6, 2012, Commissioners met
in regular session with Chairman Ron Smith,
Commissioner Dan Dinning, Commissioner Walt
Kirby and Deputy Clerk Michelle Rohrwasser.
9:00 a.m., Solid Waste Superintendent Claine
Skeen joined the meeting to give the
departmental report.
Commissioners informed Mr. Skeen that someone
had once stopped by the office to suggest the
idea of having a permanent take it or leave it
area at the landfill. Commissioners and Mr.
Skeen said they felt having this service posed a
potential liability.
The meeting with Mr. Skeen ended at 9:15 a.m.
Commissioners tended to administrative duties.
10:00 a.m., Chief Probation Officer Stacy Brown
joined the meeting to provide a department
report.
Ms. Brown provided Commissioners with the 2011
and 2012 comparison for the County’s Annual
Juvenile Justice to the Idaho Department of
Juvenile Corrections. The number of juveniles
placed into diversion programs is a positive
one, according to Ms. Brown. Ms. Brown mentioned
the number of recidivism that has taken place by
adults whose original offenses occurred when
they were juveniles. Ms. Brown said number of
community service hours total 1,678 for this
reporting period versus 448 hours for last year.
Ms. Brown said drug testing is down as there are
more burglaries this time. There are 43
juveniles on probation and four are committed,
which is a high number. There are 65 adults on
misdemeanor probation, 11 juveniles on the Youth
Accountability Board (YAB) with six new kids
coming on board.
Ms. Brown informed Commissioners she is leaving
for Boise to attend the Idaho Juvenile Justice
Association (IJJA) meeting and to score grants.
Commissioner Dinning moved to approve the
2011-2012 comparison for the County Annual
Juvenile Justice Report to the Idaho Department
of Juvenile Corrections as provided by the
Boundary County Probation Department.
Commissioner Kirby second. Motion passed
unanimously.
The meeting with Ms. Brown at 10:15 a.m.
Commissioner Dinning moved to sign the
Independent Contractor Agreement with Fulton
Quality Construction for repairs to be made to
the snowmobile warming shelter and comfort
station upon receipt of the certificate of
liability insurance and specifications.
Commissioner Kirby second. Motion passed
unanimously.
Commissioners tended to administrative duties.
10:25 a.m., Commissioner Dinning left the
meeting due to having a conflict of interest for
the next meeting to discuss the process of
Takings Analysis scheduled for 10:30 a.m.
10:30 a.m., Planning and Zoning Administrator
Dan Studer joined the meeting. Attorney Phil
Robinson was also present via telephone.
Those present questioned the process for a
request of regulatory takings analysis. Mr.
Studer and the county’s attorney have both been
provided with a copy of the Request for
Regulatory Takings Analysis. Chairman Smith
asked if there is a deadline in which a response
to the analysis is due and is there a process to
go through to complete the analysis. Mr. Studer
said there is a time limit of 42 days listed in
Idaho Code and a response is typed up as it
relates to a question sheet. In 2006 a Request
for Regulatory Takings Analysis had been filed
in regards to this same issue and former
Planning and Zoning Administrator Mike Weland
responded on behalf of Commissioners. Mr. Studer
said he has drafted a response for the Planning
and Zoning Commission, who was the deciding body
on the application of the public hearing. Mr.
Studer said he understood this can be done
internally under executive session to review the
information. Mr. Studer questioned if Planning
and Zoning Chairman Matt Cossalman would have to
come in and verify the discussion because the
deciding body was the Planning and Zoning
Commission.
Mr. Studer said has he reviewed the report
previously written by Mr. Weland.
County resident Ken Lustig joined the meeting at
10:48 a.m.
The meeting to discuss the request for
Regulatory Takings Analysis ended at 10:50 a.m.
10:55 a.m., Commissioner Dan Dinning returned to
the meeting.
11:00 a.m., Ken Lustig met with Commissioners to
discuss Commissioners’ decision on Planning and
Zoning Application #12-006 to rezone certain
lots and parcels along the Moyie River from ag/forestry
to suburban. Also present was Planning and
Zoning Administrator Dan Studer.
Chairman Smith briefly reviewed the discussions
of the prior public hearings on this
application. Chairman Smith said during one of
the previous hearings Commissioner Dinning
wanted to approve only one of the sections of
the application, but during this final public
hearing Commissioner Kirby moved to incorporate
more areas.
Mr. Lustig said he doesn’t believe there was any
definitive response to those reports to answer
his questions and he was disappointed in the
Commissioners’ decision. Chairman Smith said
Commissioners did answer the question because
they provided the information from Planning and
Zoning and the county attorney as to the status
of Earl Lane/Moyie Road. Commissioners did adopt
the opinion of the attorney, according to
Chairman Smith.
Mr. Lustig provided Commissioners with letter on
behalf of the Lustigs and the Duncans of Earl
Lane Road along with a list of specific
questions to answer and he read portions of his
letter aloud, but they are not typed here
verbatim.
Mr. Lustig said Commissioners’ decision provided
no explanations for questions and opposition
posed in the earlier hearings, nor did it
address any of the short fall concerns expressed
by the fire chief and the overwhelming
opposition of the Earl Lane Moyie residents. At
the previous hearing in September, there was not
a single voice to support the suburban zone
change south of section 15, 384 Earl Lane Road.
A lack of specific justifying answers or reasons
for ignoring the Planning and Zoning Commission;
ignoring the Hall Mountain Fire Chief concerning
proven evidence of inadequate road access;
ignoring the failure of the county to exhibit
any appropriate maintenance or construction of
its deeded right-of-way beyond the section 15
corner, the non-existing stipulation of any
overt design criteria for an all weather road,
and the lack of any standards or conditions for
awarding future variances or waivers for road
construction. None of these serious concerns
have been responded to either in public record
or in writing or even in discussion.
Mr. Lustig said Commissioners told him they
would inform him of what they would adopt.
Chairman Smith said Commissioners did adopt
opinions during this last public hearing. Mr.
Lustig said he’s not trying to be adversarial;
he’s just trying to have some questions
answered.
Mr. Lustig continued reading from his written
comments and said there is nothing in a
definitive way that allows the opposing taxpayer
constituency to understand the logic employed by
the commission. Mr. Lustig said his professional
experience of over 30 years of managing hearings
always required a Finding of Facts and
Conclusions of Law as a salient basis for
decision. That allows an administrative closure
so opponents can formulate a decision as to
whether they want to proceed with an appeal.
There is no mirror to Commissioners’ logic to
examine, according to Mr. Lustig. Mr. Lustig
said he is on record asking several questions
and requesting specific answers so he can concur
or disagree with Commissioners’ logic pattern or
a commission failure to acknowledge and
incorporate citizen concerns.
Commissioner Dinning said the portion of road of
concern is a county road and that is why it is
mapped, but a section of it is not maintained.
Mr. Lustig said he contacted the Road and Bridge
Office to find estimated projected costs to
construct this road since Chairman Smith said he
was trying to keep costs down. Chairman Smith
and Mr. Lustig debated whether or not Chairman
Smith mentioned the statement of trying to keep
costs down in relation to leaving the road in
question as is.
Mr. Lustig said he put together a project cost
estimate to show Commissioners that it would
cost 1/100th of 1% of the total Road and Bridge
budget to operate, maintain, construct, and
repair the 1/3 stretch of county right-of-way
that is the issue.
Mr. Lustig’s letter states we can’t imagine any
argument supporting a savings cost of 1/100th of
1% as being a substantial justification for
depriving citizens who were invited by permit to
live on a county right-of-way basic safety
services that insure, fire, emergency and police
protection not to mention all weather access.
Mr. Lustig asked if the county would entertain
the idea of a ten foot section of Earl Lane Road
beyond Section 15, marker 384 for constituents,
if Commissioners are not otherwise going to
maintain it. Mr. Lustig provided a list of
justifications for maintenance.
Mr. Lustig’s letter states his disappointment in
Commissioners’ decision and he requested to be
informed of the logic so as to be convinced that
Commissioners are simply not prejudiced against
those in favor of supporting development. Mr.
Lustig said Elaine Duncan who is a lawyer, would
like to know what Commissioners’ legal basis is.
One question Mr. Lustig had is since the
existing “this road is not a road” legal opinion
embraced by Commissioners doesn’t warrant
plowing and maintenance for eight houses, how
could it possibly satisfy the Suburban
requirement of permitting additional more dense
development and meeting county road standards?
Given that road standards can be waived with
additional development permitted by the
Commission’s recent decision, how can the
Commission in good faith encourage further
development on a road that is already raising
public concerns? To do this indicates an
inclination to award a waiver as listed in
Planning and Zoning Administrator Dan Studer’s
memo (10/17/12 2B) to the suburban road
standards before any proposal has been
submitted. The existing road is only 25 feet
wide and is insufficient to comply with the
Boundary County Road Standard Manual or even to
be expanded without eminent domain. This is not
fair and equitable and smacks of favoritism,
according to Mr. Lustig’s and the Duncan’s
letter. In addition, the waiver granting has no
standards of award or conditions to be adhered
to. It provides no guarantee of meeting the
intent of the Suburban Zone which is high
density requiring adequate infrastructure.
The existing access is non-conforming and cannot
conform without a taking of property, so it
fails to meet the fundamental access
requirement. For the county to award Suburban
density implies the county intends to raise the
road to meet standards or to give blank waivers
and it was asked if this undermines the argument
that the county won’t service the existing
right-of-way so as to keep costs down.
Mr. Lustig’s letter states there is a simple
possibility of a minimum of 22 lots south of
section 15 that can be split using the four lots
logic in the October 29th staff report. If the
County Ordinance considers subdivision of
greater than four lots as requiring roads up to
the county standard, how can one justify 22 lots
eventually being sanctioned without adequate
roads as required by the Ordinance?
The suburban designation has encouraged growth
in an area with a non-maintained county road
that can’t withstand this growth. This
right-of-way is only 25 feet wide and either has
to be expanded or grant a waiver.
Mr. Lustig said the four parcel split was never
intended to be used for public development; just
for the farmer to split for his kids. In the
Lustigs’ and Duncan’s’ letter many suggestions
were provided for Commissioners to consider.
Mr. Lustig said Richard Villelli owns all land
adjacent to the right-of-way and he could’ve
with good planning, reserved 35 feet to meet the
requirements of a county road. If Commissioners
provide developers with a waiver, they’re
supporting the developer’s poor business
practices, etc. The short coming is Mr.
Villelli’s doing; not the nature of the site,
according to Mr. Lustig.
Chairman Smith said he had tried to explain
during the second hearing that he wanted to
address what this right-of-way was considered.
Chairman Smith said because of deed, this
right-of-way is not a maintained county road and
this was also backed up by a legal opinion. Mr.
Lustig said he’s not an idiot and he has read
the opinion. Mr. Lustig said if Commissioners
are designating this area as suburban, how will
the county meet its own standards?
Commissioner Dinning said any development of
four lots or less, a developer has to come to
the county for approval and this Board of
Commissioners has an obligation to look at every
issue Mr. Lustig raised. Just because a waiver
is allowed doesn’t make it automatically given
as the developer or applicant will have to go
through the Planning and Zoning Commission and
the Board of Commissioners, and that is where
the issue of trust is. The specific issues
raised today would be addressed at that time,
according to Commissioner Dinning. Commissioner
Dinning said those are things that would occur
during the processes. Mr. Lustig said there are
no standards for issuing that.
Mr. Lustig said he ran into a Planning and
Zoning member who smiled at him and told him he
was being naive about Commissioners. Mr. Lustig
said Commissioner Kirby was quoted during the
last public hearing as saying this designation
is what Commissioners have wanted all along. Mr.
Lustig mentioned the feeling of Commissioners
having a hidden agenda or not being candid when
people feel they have not been heard.
Mr. Lustig said this is the county’s
right-of-way and he technically can’t do
anything on it. Mr. Lustig said he’s afraid the
county will ultimately make him contribute
towards costs to improve the right-of-way and he
and the neighbors won’t get anything out of
this. Mr. Villelli should have taken care of
this issue when he owned the land, according to
Mr. Lustig.
Commissioner Dinning said Mr. Lustig is making
the assumption this development is going to
occur. Commissioner Kirby said if a developer
wants to build a high density area, he is
responsible for buying the road. Mr. Lustig said
he doesn’t want the road. The people in this
area who are opposed to Commissioners’ decision
are so angry that they’ve hired an attorney.
Chairman Smith explained to Mr. Lustig that the
county does not levy for Road and Bridge. Mr.
questioned how Road and Bridge is funded and
Chairman Smith referred to the Secure Rural
Schools Funds.
Chairman Smith said he felt the questions about
this right-of-way were answered. The questions
had been what happens as far as road
requirements if someone wanted to build. Mr.
Lustig asked if there are some assurance for
maintenance and improvements. Mr. Lustig asked
if the county would entertain selling the road
to someone and Commissioner Dinning said the
county cannot sell roads.
Mr. Lustig said he’s learned not to participate
in any further county activities and he
mentioned the time he’s put into developing the
new Comprehensive Plan.
The meeting with Mr. Lustig ended at 11:40 a.m.
There being no further business, the meeting
adjourned at 11:50 a.m.
/s/
RONALD R. SMITH, Chairman
ATTEST:
/s/
GLENDA POSTON, Clerk
By: Michelle Rohrwasser, Deputy
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