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Commission Board Meeting on Wed, July 9, 2003 - 6:35 PM

Meeting Information: 


  • Convene

  • Pledge of Allegiance

  • Consider approval of minutes of May 21, 2003

  • Recognition of volunteers who contributed to May 8th tornado response and recovery (Paula Phillips)

CONSENT AGENDA
 (1) (a) Consider approval of  Commission Orders


REGULAR AGENDA
 (2) Discussion of Petition for Attachment of Land to Rural Water District #4


 (3) Consider approval of conditions and restrictions for CUP-12-16-02 -- Conditional Use Permit for Eudora Quarry #68; northwest corner of N 1200 Road and E 2400 Road (Brian Pedrotti)


 (4) Consider approval of resolution imposing regulations and criminal penalties on owning and possessing vicious dogs in Douglas County, Kansas


 (5) Consider approval of KDOT Form 1030 authorizing KDOT to proceed to contract on Project No. 23 C-3688-01, improvements to Route 1029 from the Kansas Turnpike to 7th Street in Lecompton (Keith Browning)


 (6) Consider approval of Douglas County Community Corrections FY04 Budget (Ron Stegall)


 (7) Consider approval of publication of 2004 budget (Craig Weinaug)


 (8) Other Business
  (a) Consider approval of Accounts Payable (if necessary)
  (b) Appointments
  (c) Miscellaneous
  (d) Public Comment 


 (9) Adjourn

Related Document(s): 
Meeting Location: 
County Courthouse
Street Address: 
1100 Massachusetts St, Lawrence, KS 66044, USA
Meeting Minutes: 

Johnson called meeting to order at 6:39 P.M. on Wednesday, July 9, 2003.  All members were present. The Pledge of Allegiance was recited.


McElhaney moved approval of the minutes of May 21, 2003. Motion was seconded by Jones and carried unanimously.


MISCELLANEOUS 07-09-03
Paula Phillips, Director of Emergency Management, conducted a brief presentation in recognition of volunteers who contributed to the May 8, 2003 tornado response and recovery.


CONSENT AGENDA 07-09-03
Jones made a motion to approve the following Consent Agenda:



  • Approve Commissioners Order No. 5148. Order is on file in the office of the County Clerk.

McElhaney seconded and the motion carried unanimously.


RURAL WATER & PLANNING 07-09-03
On April 16, 2003, the Board conducted a public hearing regarding the Petition for Attachment of Land to Rural Water District #4. At that time, the Board directed tabled this item pending review and comment from the Lawrence- Douglas County Metropolitan Planning Commission. At its meeting on 5/28/03, the Planning Commission forwarded the following formal comment on the proposed expansion of the RWD #4 service boundary in island annexations, with the recommended inclusion of the following revised conditions:



1. Undeveloped properties in the enlargement area and within the 3-mile planning boundaries of Lawrence, Eudora and Baldwin shall be platted before receiving new water meters or service lines from RWD #4;
2. RWD #4 waives their statutory right to compensation for infrastructure and meters located on lands within the island annexations and annexed by the City that meet all of the following conditions:
      a. The lands are within the 3-mile planning boundary of an incorporated city of Douglas County;
      b. Properties not provided water service by RWD #4 as of the date of the district service area adjustment; and
      c. Meters and/or other infrastructure are not reusable by the City upon annexation.
3. RWD #4 will not waive compensation rights for any properties currently receiving service from RWD #4, regardless of the property's location within or outside the 3-mile planning boundary of any incorporated city; and
4. RWD #4 and the City will negotiate a fair market price for compensation to be paid to RWD #4 for meters and/or other infrastructure that is reusable by the City when upon annexation.


Jones requested clarification regarding platting restrictions, i.e., does it apply to all of the area within three (3) miles or just in the newly annexed area. Linda Finger, Director of the Lawrence-Douglas County Metropolitan Planning Department, explained that the minutes reflect that it was the enlargement area which is a subset of the three (3) miles.


John Nitcher, speaking on behalf of the water district, presented a map of the district indicating a yellow territory, which is the established district, and a blue territory which indicates parcels the district serves but are not formally in the district. It is the district's desire to bring the blue territory into the district to solve some administrative problems. According to the district's bylaws, only property owners within the defined boundaries (the yellow area) can participate as members of the district. This means that there are individuals who have been served by the district for as many as thirty (30) years, who are not allowed to vote at the annual meeting or to hold office on the Board. Nitcher noted that the request includes only those parcels that are presently served or that the district has easements across.


After a lengthy discussion, it was the consensus of the Commission to table consideration of this petition until the Urban Growth Area recommendations anticipated from the Planning Commission have been received and acted upon by the County Commission.


COMMUNITY CORRECTIONS & GRANTS 07-09-03
The Board considered approval of the FY 2004 Community Corrections Grant Funds; FY 2004 Carryover Reimbursement Plan, and amendments to FY2003 Condition Violator Grant and FY2003 Community Corrections Grant Budget. Ron Stegall, Director of Community Corrections, was present for the discussion. Jones moved approval of the FY 2004 Community Corrections Grant Funds; FY 2004 Carryover Reimbursement Plan, and amendments to FY2003 Condition Violator Grant and FY2003 Community Corrections Grant Budget. Motion was seconded by McElhaney and carried unanimously.


RESOLUTIONS 07-09-03
The Board considered approval of HR-03-7-3, a Resolution of the Board of County Commissioners of Douglas County, Kansas Imposing Regulations and Criminal Penalties on Owning and Possessing Vicious Dogs in Douglas County, Kansas. Jones moved approval of HR-03-7-3; McElhaney seconded and the motion carried unanimously.


BUDGET 07-09-03
Jones made a motion to authorize Notice of Publication of Hearing of 2004 Budget to be held at 6:35 P.M. on Wednesday, August 13, 2003. Motion was seconded by Johnson and carried unanimously.


PLANNING 07-09-03
On May 21, 2003, the Board considered approval of CUP-12-16-02: a Conditional Use Permit request for Eudora Quarry #68. The property is generally described as being located at the northwest corner of N 1200 Road and E 2400 Road.  Requested by N. R. Hamm Quarry, Inc., for Katherine L. Neis, property owner of record.  The Board approved CUP-12-16-02, contingent upon finalization of the conditions and restrictions in accordance with the discussions held during the hearing. The Board directed Staff to revise the conditions in accordance with the discussions for consideration. Staff presented the following Findings of Fact and Conclusions of Law:


FINDINGS OF FACT



1.  N.R. Hamm Quarry, Inc. ("Hamm Quarry") as the tenant of real estate owned by Katherine L. Neis has filed an application for a Conditional Use Permit ("CUP Application") to operate a quarry on approximately 129 acres of real estate located near the Northwest corner of N 1200 Rd. and E 2400 Rd.


2.  The CUP would allow Hamm Quarry to expand a quarry that it currently operates immediately to the South of the subject site.


3.  The subject site is located in an "A" Agricultural District.


4.  By Staff Report dated February 6, 2003, the Lawrence-Douglas County Metropolitan Planning Staff recommended that the CUP Application be granted, subject to certain conditions set forth therein.


5.  On February 26, 2003, the Lawrence-Douglas County Metropolitan Planning Commission and the Planning Commission for the City of Eudora, Kansas held a joint public hearing on the CUP Application.  At the conclusion of the public hearing, the Lawrence-Douglas County Metropolitan Planning Commission voted unanimously (9-0) to recommend approval of the CUP Application, subject to certain conditions set forth in its Minutes from that meeting.   The Planning Commission for the City of Eudora voted unanimously (4-0) to recommend denial of the CUP Application.


6. On March 12, 2003, a protest petition was filed with the Douglas County Clerk and on March 31, 2003, the Douglas County Clerk certified the protest petition as valid.


7. On May 14, 2003, the Board of County Commissioners of Douglas County, Kansas (the "Board") commenced a public hearing regarding the CUP Application.  This hearing was adjourned to May 21, 2003 to address a concern raised by Dan Watkins, the attorney for Hamm Quarry, as to whether the protest petition was valid.


8. By document dated May 14, 2003, with Dan Watkins concurring, the Douglas County Clerk re-certified the protest petition as valid.


9. On May 21, 2003, the Board reconvened the adjourned May 14, 2003 public hearing.  The May  21, 2003 hearing was lengthy and the Board allowed all persons present at the hearing to provide comments.  A summary of comments received is set forth in the Minutes of the Board.
10. The subject site will not be used as a year-round quarry.  The site will only be used when Hamm Quarry has a particular project in the area that needs rock from this quarry.  There may be long periods of time when rock is not being extracted from the subject site followed by shorter periods of fairly intense usage.  This is not a 365 day per year operation.  For example, in the past 10 years, there were only two four month periods when there was blasting and crushing activity at the existing quarry.  Hamm Quarry has made clear that the expanded quarry will be operated in a similar manner.


11. There is a slight difference between the metes and bounds legal description and the site drawing contained in Hamm Quarry's CUP Application, but the CUP Application makes clear the intent that the CUP cover the property shown in the site drawing.  All discussions relating to the CUP Application were based upon the site drawing.  Based upon real estate that Katherine L. Neis owns, as contained in the Douglas County land records, the legal description for the real estate covered by the CUP is as follows:


The North Half of the  Southeast Quarter of Section 15, Township 13, Range 21 in Douglas County; the South Half of the Southwest Quarter of the Northeast Quarter of Section 15; All of the Southeast Quarter of the Northeast Quarter of Section 15, LESS that part on the East side thereof comprising about ten (10) acres conveyed by Levi Woodward and Sarah A. Woodward, his wife, to Henry S. Crumrine on March 18, 1867, subsequently described as follows: Commencing at the Southeast corner of the Northeast Quarter of Section 15, Township 13, Range 21; thence North 34 1/4 degrees West 14.47 Chains; thence North 3 1/4 degrees West 5 Chains; thence North 40 1/2 degrees East 3 Chains; thence North 60 degrees East 2.43 Chains; thence East on the Quarter Section line 4.44 Chains to the Section line; thence South on the Section line 80 rods to place of beginning; and LESS the following, containing one acre, more or less: Beginning at a point in the Northwest corner of the West Three-Fourths of the Southeast Quarter of the Northeast Quarter of said Section 15; thence running South Ten (10) rods; thence East Sixteen (16) rods; thence North Ten (10) rods; thence West Sixteen (16) rods to the place of beginning.


This legal description will be contained on the face of the CUP plan.


12. The foregoing legal description and the site drawing in the CUP Application is what the Lawrence-Douglas County Planning Office used to determine property owners within 1,000 feet of the subject site for purposes of sending notification prior to the Planning Commission hearing and is also what was used for determining the adequacy of the protest petition.


CONCLUSIONS OF LAW



1. The Board has the authority to review and to either approve or disapprove an application for a Conditional Use Permit under K.S.A. 12-755(a)(5) and Article 19 of the Douglas County Zoning Regulations.


2. Conditional use permits are based upon the zoning power granted by the State but, by definition, empower governing bodies to impose conditions upon the granting of such permits to protect the health, safety and welfare of the public.


3. The Douglas County Zoning Regulations allow the Board to approve a CUP for a quarry located in an "A" Agricultural District.


4. Because a valid protest petition was filed, Section 19-1.05 of the Douglas County Zoning Regulations requires at least a 3/4th vote of all members of the Board to approve the CUP Application.  With only three members of the Board, unanimous approval is required.


5. Section 19-1.02 of the Douglas County Zoning Regulations require the consideration of relevant facts, including the following, in determining to grant a conditional use permit:


     a. The zoning uses of properties nearby.
     b. Character of the area.
     c. Suitability of the subject property for the uses to which it has been restricted.
     d. Length of time the property has remained vacant as zoned.
     e. Extent to which the change will detrimentally affect the nearby property.
     f. Relative gain to the public health, safety, and welfare by destruction in value of the petitioner's property as compared to the hardship imposed upon the individual landowners.
     g. Conformance with the Comprehensive Plan.
     h. Professional staff recommendation.


These factors are virtually identical to and incorporated from the considerations set forth in applicable Kansas cases.  See Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978) (setting forth a list of factors (referred to as the "Golden factors") for consideration in rezoning cases); K-S Center Co. v. City of Kansas City, 238 Kan. 482, 494-95, 712 P.2d 1186 (1986) (stating that the rules governing issuance of a conditional use permit are similar to those factors applicable in rezoning cases).


6. Section 19-4(5) of the Douglas County Zoning Regulations specifically recognizes that development of natural resources, such as the limestone on the instant real estate, should be allowed within zones reserved for their development and production, to guarantee that these sources will not be forever lost for the benefit of Douglas County, Kansas.


7. With respect to the foregoing factors, the Board makes the following findings:


     a. Zoning and uses of property nearby.  The subject property is located west of E 2400 Road adjacent to the Johnson County line and north of N 1200 Road. The site is agriculturally zoned and used for row crops and pasture.  Surrounding property is also row crop and pastureland with scattered residences. The existing quarry site, which contains rock deposits similar to what Hamm Quarry believes is at the subject site, is adjacent to the South of the subject site.


     b. Character of the area.  The character of the area is largely agricultural in nature with some single-family residences and the existing quarry to the South.


     c. Suitability of subject property for the uses to which it has been restricted. The subject site is suited for the Agricultural District uses to which it is restricted.  A quarry is permitted in this zoning district, provided that the Board approves the CUP Application.  Proximity to the existing quarry and rock deposits at the subject site, however, make the subject site well-suited for a quarry.


     d. Length of time subject property has remained vacant as zoned. The subject site has been zoned A (Agricultural) since 1966, when Zoning Regulations were adopted in Douglas County.


     e. Extent to which removal of restrictions will detrimentally affect nearby property.  The Conditions and Restrictions of Use hereby adopted will minimize any detrimental impacts to adjacent property.  These include conditions to provide reclamation of the existing quarry as well as the new site; provisions for a drainage study; pre-blast surveys; a fencing and screening plan; an imposed fee per ton of mate rial removed from the new quarry (indexed for inflation), which will be used to help maintain County roads; restrictions including setbacks from existing residences, property lines, and waterways; time limitations on quarry activity; dust controls; restrictions on truck routes to keep trucks off of township roads to the maximum extent possible; and requirements for cleanup of material spillage.  Provisions for a review of the CUP at five year intervals will ensure continuous monitoring of the Conditions and Restrictions of Use.


     f. 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 to imposed upon the individual landowner.  With the imposition of the Conditions and Restrictions of Use adopted herein, the quarry will not adversely affect the public health, safety or welfare.   The fencing and screening plan, to be approved by the Board prior to commencement of operations, will be designed to appropriately contain quarrying operations on the subject site.  Likewise, granting the CUP Application will not create unreasonable traffic safety issues.  Traffic safety matters concerning County Route 1061 are discussed below.  Conditions requiring Hamm Quarry to pay for certain road improvements and maintenance expenses for N 1200 Rd. between the subject site and Route 1061 will enhance the safety on that township road.


     g. Conformance with the Comprehensive Plan.  Horizon 2020 does not directly address the issuance of CUPs for quarry operations.  The proposed location of the quarry, however, is adjacent to an existing quarry and is in conformance with Horizon 2020.  Analogizing the quarry use to industrial use, Horizon 2020 actually encourages granting the CUP Application.  Chapter 7, Industrial and Employment Related Land Use, Policy 1.4 provides opportunities for limited industrial development in unincorporated areas of Douglas County and encourages limited expansion of existing industrial areas.  Because of the Conditions and Restrictions of Use, granting the CUP Application will be a limited expansion of the existing quarry.


     h. Professional staff recommendation.  Granting the CUP Application is consistent with the recommendations of the Lawrence-Douglas County Metropolitan Planning Commission staff.   As stated in the Staff Report, any detrimental effect is mitigated by imposition of Conditions and Restrictions of Use.


8. Reclamation of the site was discussed at length.  The plan of reclamation for the site as proposed in the CUP Application is acceptable to the Board, but Hamm Quarry shall comply with all other provisions of the Conditions and Restrictions of Use and Kansas statutes relating to reclamation.  For example, a condition imposed in approving the CUP Application is that Hamm Quarry reclaim  the existing quarry that it has operated since before Douglas County adopted its Zoning Regulations and since before Kansas statutes imposed reclamation requirements.  To the extent that Hamm Quarry currently has no legal obligation to reclaim that quarry, approving the CUP Application imposes a reclamation obligation upon Hamm Quarry and this reclamation provides a benefit to the neighborhood.


9. Blasting at the site was discussed at length.  Opponents to the CUP Application expressed fears that blasting will damage their properties or adversely affect streams and wells, but did not provide any expert evidence on this issue.  David Dresler, an explosives expert from Dresler & Associates, however, did provide testimony that the Board finds to be credible.  He stated that blasting vibrations caused by blasting are highly regulated by other governmental agencies and that those regulations are sufficient to prevent property damage.  As an example of how safe the blasting can be, he stated that other quarries that have high pressure gas pipelines running through them can blast without damaging the pipelines.  He also stated that blasting vibrations do not affect acquifers or ground water table.  In any event, the pre-blast survey required in Section V of the Conditions and Restrictions of Use imposed on the CUP will provide neighboring property owners with a baseline as to the condition of their property prior to the blasting.  Likewise, particularly in light of statements of David Dresler, the Board finds that the storage of explosives at the subject site is heavily regulated by other governmental agencies and that the general public is adequately protected without additional storage regulations.


10. The Board declines to adopt the opponents' suggestion to deny the CUP Application based upon their claim that there is no "need" for the rock that will be quarried at the site.  First, no credible evidence has been provided that there is no need for the rock.  The cost of hauling rock is a large portion of the expense of delivered rock.  Thus, the fact that Hamm Quarry or its competitors have other quarries in Douglas County and surrounding counties does not mean that there is no need for this quarry in this particular area.  The Board concludes that a quarry in this particular area will benefit the community as a whole because the quarry will provide a source of rock in the area with lower hauling costs.  Hamm Quarry would not have filed its CUP Application if it thought that there is not a need for the rock.  In addition, denying the CUP Application based upon a perceived lack of need is legally questionable.  For instance, when the City of Lawrence denied an application for a Use Permitted Upon Review for a new hospital in Lawrence based upon a lack of need for a new hospital, the Douglas County District Court determined that City Commission had exceeded its legal authority and directed the City to approve the UPR permit.  See American Medicorp Development Co. v. City of Lawrence, Douglas County District Court Case No. 97C51.   On appeal, the Court of Appeals reversed the District Court because it determined the case was moot, without reaching the City Commission's needs based analysis.  See American Medicorp Development Co v. City of Lawrence, 996 P.2d 849 (Kan. App. 2000) (unpublished opinion).


11. Concerns relating to traffic safety on County Route 1061 were discussed at length, but the Board concludes that granting the CUP Application will not create unreasonable traffic safety conditions on Route 1061.  First it must be pointed out that whenever people oppose a rezoning, one complaint normally raised is that the new land use will cause traffic problems and create traffic safety issues.  Just because some opponent)s have objected to the CUP Application based upon traffic safety concerns does not mean that granting the CUP Application will create unreasonable traffic safety conditions.  The Board concludes that it is speculative to reach such a conclusion in this case.  Route 1061 is a rural major collector road and its purpose is to collect traffic from local roads and provide a route to primary arterial roads, which is exactly the plan in this situation.  Hamm Quarry already operates a quarry directly to the South of the subject site, which already creates truck traffic when Hamm Quarry has road projects in the area.  In addition, as set forth in Finding of Fact No. 10, the subject site will be used intermittently and the expanded quarry will not produce truck traffic all day, every day.  Many opponents expressed fears of a 365 day per year operation, which is simply not the case.  Other than an outright denial of the CUP Application, no opponents of the CUP Application have provided any specific recommendations on dealing with Route 1061.  Therefore, the Conditions and Restrictions of Use require Hamm Quarry to "take the lead to communicate and cooperate with the Douglas County Public Works Director and Eudora city and school officials on traffic controls on County Road during periods of quarry activity."  This will ensure that truck traffic is coordinated during those periods that the site produces truck traffic.  Hamm Quarry's compliance with the Conditions and Restriction on Use will be monitored.  If Hamm Quarry does not cooperate with these governmental agencies in finding solutions to traffic matters that arise, it will risk having the CUP revoked.  In addition, traffic safety on Route 1061 is an issue separate from the CUP Application.  The Douglas County Public Works Department, the City of Eudora, and the Eudora School District have been engaged in ongoing discussions on ways to enhance safety on Route 1061 as it enters the City of Eudora.  The City of Eudora has already engaged a traffic consultant to provide recommendations concerning safety on the road and these issues will be resolved through cooperation among local governmental agencies.  The Board believes that traffic safety can be adequately addressed through speed limits, additional signage, traffic calming devises, and other methods available to the Board, the City of Eudora, and the Eudora public schools.  Douglas County, the City of Eudora, and the Eudora public schools have already cooperated to successfully mitigate traffic safety issues during the construction of the new Eudora High School on Route 1061, which is an example of how these agencies can work together to solve issues that arise. Finally, the Restrictions and Conditions of Use require that Hamm Quarry pay a fee of $0.10 (indexed for inflation) for each ton of rock that is quarried from the new site, which Douglas County will use to help maintain county roads.  The Board believes that additional traffic issues may be adequately handled if they arise and that it would be unreasonable for the Board to deny the CUP Application based upon the CUP opponents speculation.  The Board concludes that granting the CUP Application will not have a material adverse impact on traffic safety on Route 1061.


12. Opponents of the CUP Application expressed concerns about fencing and screening around the site.  The Board has determined that appropriate fencing and screening is advisable, but has not determined the exact fencing and screening that is appropriate.  Therefore, a condition has been added to the Conditions and Restrictions of Use that requires Hamm Quarry to submit a fencing and screening plan to the Board for the Board's approval prior to its commencement of operations on the new site.


13. Planning Staff originally recommended that the existing quarry be included in and made a part of the CUP Application.  The existing quarry is not subject to any fee per ton of rock quarried.  Adding it to the CUP Application, however, would serve to impose a $0.10/ton fee on rock that Hamm Quarry can already legally mine without payment of a fee, which the Board declines to do.  In addition, increasing the real estate covered by the CUP would raise issues as to whether Hamm Quarry would need to commence the entire CUP process over with respect to that added real estate: new notices to neighbors within 1,000 feet, another public hearing before the Planning Commission, etc.  The Board concludes that including additional real estate to the CUP is not necessary to protect public health, safety, morals and general welfare.  Requiring Hamm Quarry to reclaim the existing quarry serves to accomplish the major purpose of including the existing quarry and the Board is satisfied with this result.


14. The Conditions and Restrictions of Use were extensively discussed and debated.  In finalizing the Conditions and Restrictions of Use, the Board considered the recommendations of Planning Staff and the Lawrence-Douglas County Planning Commission, together with statements of representatives of Hamm Quarry, and statements of neighboring) property owners.  The final Conditions and Restriction on Use adopted herewith contain necessary safeguards to protect the public health, safety, surrounding property, persons and neighborhood values.


15. The slight difference between the metes and bounds legal description in the CUP Application and the drawing contained in the CUP Application has not prejudiced any legal rights of any party.  It has always been clear that the CUP Application was intended to cover all of Katherine Neis' property to her northern property line.  The slight difference did not result in any defective noticing of the CUP Application prior to the Planning Commission hearing, and the slight difference did not result in any different result relating to the protest petition.


16. Subject to the Conditions and Restrictions of Use adopted herewith, the Board unanimously concludes that the applicant has met the applicable criteria and, therefore, approves the CUP Application.
McElhaney made a motion to approve the above Findings of Fact and Conclusions) of Law. Motion was seconded by Jones and carried unanimously.


ACCOUNTS PAYABLE 07-09-03
McElhaney moved approval of accounts payable in the amount of $401,269.86 to be paid 7/14/03, and accounts payable manual checks in the amount of $766.00.  Jones seconded and the motion carried unanimously.


APPOINTMENTS 07-09-03
Johnson reported that he has met with Lawrence City Mayor David Dunfield regarding two (2) openings on the Economic Development Board. Dunfield and Johnson would like to appoint Jim Roberts who is with the University of Kansas Center for Research and Rich Kaplan, Executive Director of the K-10 Association), to the Economic Development Board. Jones made a motion to ratify the Chair's appointment of Roberts and Kaplan to the Economic Development Board; McElhaney seconded and the motion carried unanimously.


Johnson moved for adjournment.  Jones seconded and the motion carried.


_____________________________ _____________________________
Bob Johnson, Chairman                       Jere McElhaney, Member


ATTEST:


_____________________________ _____________________________
Patty Jaimes, County Clerk                   Charles Jones, Member