-Pledge of Allegiance
(1) (a) Consider approval of Commission Orders
(b) Consider approval of Agreement with KDOT for Underwater Bridge Inspections
(2) Planning Items:
(a) CUP-03-01-04: Conditional Use Permit request for a cell phone tower. The property is located at 730 N 300 Road (NE Corner of Hwy 45 and E 700 Road). Submitted by Selective Site Consultants for Cingular Wireless, applicant, and Leonard D. and Roxann Heffner, property owners of record. (Sandra Day)
(b) Z-03-12-04: A request to rezone a tract of land approximately 4.65 acres from A (Agricultural) District to I-2 (Light Industrial) District. The property is generally describe as being located at 1452 East 1 Road. Submitted by Robin L. Edmonds for Shirley Edmonds, property owner of record. (Paul Patterson - Planning Commission unanimously denied request at their April meeting)
(3) Other Business
(a) Consider approval of Accounts Payable (if necessary)
Jones called the meeting to order at 6:35 P.M. on Wednesday, May 19, 2004 with all members present. The Pledge of Allegiance was recited.
CONSENT AGENDA 05-19-04
Johnson moved approval of the following Consent Agenda:
- Approve Commissioners Order No. 5241. Order is on file in the office of the County Clerk; and
- Approve Agreement with Agreement with the Kansas Department of Transportation for conducting underwater inspections of the Kansas River bridges at Lecompton (Douglas County Bridge No. 21.30-06.15; NBI 230240) and Eudora (Douglas County Bridge No. 14.90-21.90; NBI 230090).
Motion was seconded by McElhaney and carried unanimously.
The Board considered Item No. 7 of the minutes of the Lawrence-Douglas County Metropolitan Planning Commission dated April 28, 2004. This item is CUP-03-01-04: Conditional Use Permit request for a cell phone tower. The property is located at 730 N 300 Road (NE corner of Highway 56 and E 700 Road). Submitted by Selective Site Consultants for Cingular Wireless, applicant, and Leonard D. and Roxanne Heffner, property owners of record. Sandra Day, staff member of the Lawrence-Douglas County Metropolitan Planning Department, presented this item. This item comes to the Board with a 5-4 recommendation of approval from the Planning Commission based on the following Findings of Fact:
FINDINGS OF FACT
Zoning and uses of property nearby. The subject property and surrounding area is zoned and used for agricultural purposes in all directions.
Character of the area. The subject property is located within an existing agricultural neighborhood. The area includes a few scattered rural homes located along the county roads.
Suitability of subject property for the uses to which it has been restricted.The suitability of the subject property for its current "A" (Agricultural District) zoning will not be altered by the approval or denial of a CUP for the construction of a tower. The location of a tower facility in an agricultural district is preferred. Towers are a permitted use in this district subject to the approval of a CUP.
Extent to which removal of restrictions will detrimentally affect nearby property. No physical detrimental impacts are anticipated by the construction of a communication tower in part because the base zoning will not be altered. The proposed tower height is 250' and will require lighting consistent with FAA regulations. The proposed tower is located in a preferred zoning district.
Length of time subject property has remained vacant as zoned. The subject property does not include any buildings/structures and is currently used for agricultural activities. The agricultural zoning has been in place since 1966.
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. No significant gains to the public health, safety and welfare would result from the approval of this proposed tower. Approval of this tower will result in the improvement of communication service for the private provider making this request. The proposed 60' by 60' fenced enclosure area is setback 225' from the nearest property line and 270' from the centerline of E 700 Road. The center of the tower structure is located approximately 254' from the nearest property line. The county code requires the minimum setback be equal to the height of the tower.
Conformance with The Comprehensive Plan. Horizon 2020 does not directly address the issue of special or conditional uses. The plan provides basic guidance regarding major infrastructure improvements and urges that such uses be carefully planned and provided. The provision of such services should be focused in existing service areas to address growth. Additionally, placement and visual appearance are a key consideration in creating compatibility.
AND subject to the following conditions:
1. Provision of a revised site plan to include the following:
a. Show location, fixture type, and mounting height of exterior lighting on the equipment building and provide a note that states lighting shall be shielded and directed downward;
b. Minimal lighting at the base shall be reviewed and approved by staff. Any lighting of the enclosure area shall be directed downward and shielded to prevent glare and light trespass;
c. Note existing trees along E 700 Road are existing;
d. Provide general note on page three to summarize surrounding land use per section 19-4.31(b)2; and
e. Show or note the proposed height of the equipment building.
2. Provision of a copy of the letter sent to the property owners within 1- mile of the proposed tower site for file;
3. Provision of the following notes on the face of the site plan:
a. "Any tower that is not used for a period of three years, or more, shall be removed by the owner at the owner's expense. Failure to remove the tower pursuant to non-use may result in removal and assessment of cost to the property per K.S.A. 12-6a17. & 19- 4.31(c)4;" and
b. "The tower owner and/or operator shall submit a letter to the Planning Office by July 1st of each year listing the current users and types of antenna located on the approved tower. (19-4.31(c)5)."
4. Provision of a sign to be posted on the tower or the 6' chain link fence noting the name and telephone number of the tower operator and operator. (19-4.31(c)5); and
5. Provision of a copy of an approved entrance permit from Marion Township for access to the tower site.
Day noted that a Protest Petition was received but was determined to be invalid by Planning Staff since it was not received by the deadline and there also were not enough properties participating to require a super-majority vote by this body. Day also noted that there is an existing landing strip to the north of the subject property.
Chase Simmons, legal counsel for the applicant, Cingular Wireless, and Sean Wyrick, System Engineer for Cingular Wireless, were also present for the discussion. Simmons stated that a tower was needed in this location in order to serve an identified significant gap in coverage. He requested approval as submitted. Simmons also noted the proposed tower had received approval from the FAA with no comment about safety concerns.
Darrell Norris, owner of the landing strip, noted his opposition to the location of the tower. Norris stated the tower is in direct line of the south end of the runway, which could be problematic in bad weather. Norris requested that either a different location be selected or that the permit be denied. Norris presented three (3) additional signatures protesting the CUP.
Johnson referenced a letter from the FAA dated March 15, 2004 indicating their aeronautical study revealed that the structure does not exceed obstruction standards and would not be a hazard to air navigation.
Jones stated that from a legal standpoint, it would be difficult to deny the CUP.
Bruce Snodgrass stated he has property in the area and believes a cell tower is needed.
Jones questioned the legality of Planning Staff's determination regarding the Protest Petition.
Day noted that Protest Petitions must be received in the County Clerk's Office by a certain date, which was not met in this case.
Jones requested that the Protest Petition be forwarded to the County Clerk's Office for determination of its validity. No action was taken.
The Board considered Item No. 14 of the minutes of the Lawrence-Douglas County Metropolitan Planning Commission dated April 28, 2004. This item is Z- 03-12-04: A request to rezone a tract of land approximately 4.65 acres from A (Agricultural) District to I-2 (Light Industrial) District. The property is generally located at 1452 East 1 Road. Submitted by Robin L. Edmonds for Shirley Edmonds, property owner of record. Paul Patterson, staff member of the Lawrence-Douglas County Metropolitan Planning Department, explained that the request was made in order to bring an existing excavation business into conformance. With the adoption of the County Zoning Code in February 2001, the existing use was given a sunset of May 1, 2006 to come into conformance. It currently did not meet Type 3 Home Occupation regulations because of the number of on-site employees. The Planning Commission unanimously denied the rezoning request based on the following Findings of Fact:
FINDINGS OF FACT:
Zoning and uses of property nearby. The property is located entirely within an A (Agricultural) District. The use of the properties in this area is agricultural.
Character of the area. The property is located at 1452 East 1 Road. The 4.65 acre property is located at the western edge of Douglas County, along the east side of a gravel road with truck access from the south. Access from the north is restricted due to narrow bridges and roadways which are not passable during high water events. The general character of the area is rolling hills. The only offsite structure visible from the subject property contractor's yard is a residence located to the north.
Suitability of subject property for the uses to which it has been restricted. In staff's opinion, the property is still suitable for the existing Agricultural use. A rezoning to I-2 (Light Industrial) would not be consistent with the existing Agricultural use in the area.
Length of time subject property has remained vacant as zoned. The property is zoned A (Agricultural) District. The property is not vacant but contains a rural residential house, plus several outbuildings including a contractor's yard with construction equipment and outside storage of waterline pipes.
Extent to which removal of restrictions will detrimentally affect nearby property. Removal of the restrictions and rezoning to an I-2 (Light Industrial) District may detrimentally affect nearby property, as it is entirely within an A (Agricultural) Zoning District and is not accessed by a major thoroughfare or railroad.
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. The rezoning of the site to an industrial district of I-2 would not provide a relative gain to the public health, safety, ,and welfare by providing for an industrial property at this location.
Conformance with The Comprehensive Plan. The proposed request to I-2 Light Industrial at this location would not be consistent with the Industrial and Growth Management and Land Use Goals and Policies of the County/City's Comprehensive Plan Horizon 2020.
The Planning Commission also made a motion to initiate and schedule a public hearing in May 2004 for a Text Amendment to the County Zoning Regulations to make an excavation use allowable with approval of a Conditional Use Permit, provided the operation employed no more than 12 individuals meeting the Article 19 definition of non-residential employees.
After discussion, Robin Edmonds, applicant, requested deferral of this item. Edmonds also requested documentation of the deferral in order to ensure no enforcement action could be taken on his business. McElhaney made a motion that the Chair be authorized to execute a letter to Mr. Edmonds stating that no enforcement action would be taken with regard to land use designation until his application has been acted upon. Motion was seconded by Johnson and carried unanimously.
DISTRICT ATTORNEY & INFORMATION TECHNOLOGY 05-19-04
Pam Madl, Director of Administrative Services, appeared before the Board to discuss the design and development of a Prosecutorial Software package for the District Attorney's Office. Madl explained that the State of Kansas has invited the Douglas County District Attorney's Office to serve on a committee charged with the design and development of a Prosecutorial Software package which will complement the new Full Court system. The current system being used by the District Attorney's Office has never operated satisfactorily, but the main concern is that we only have maintenance coverage for the AS400 computer for two more years. If we don't replace this software with a server based system, we will need to purchase a new AS400 at that point. The State is applying for a Byrne Grant of approximately $400,000 to fund the design, development, and implementation of this new software and Madl has volunteered to be the administrator of this grant. This effort does not commit County funding in any way. Jones made a motion to approve the involvement in the Byrne Grant Application naming Pam Madl as administrator to develop a statewide Prosecution System for use in Kansas. Motion was seconded by Johnson and carried unanimously.
Jones made a motion to adjourn; Johnson seconded and the motion carried unanimously.
Charles Jones, Chairman Bob Johnson, Member
Patty Jaimes, County Clerk Jere McElhaney, Member