***Monday, December 02, 2013, Commissioners met in regular session with Chairman Dan Dinning, Commissioner LeAlan Pinkerton, Commissioner Walt Kirby, Clerk Glenda Poston, and Deputy Clerk Michelle Rohrwasser.

Commissioners gave the opening invocation and said the Pledge of Allegiance.

9:00 a.m., Road and Bridge Superintendent Jeff Gutshall joined the meeting to give the departmental report. Mr. Gutshall presented a written report. Mr. Gutshall said plows are being installed on the sand trucks. Road and Bridge has started receiving calls about snow and road conditions, according to Mr. Gutshall. Mr. Gutshall said he and his employees will work on their Mining Safety and Health Administration (MSHA) and Idaho Counties Risk Management Program (ICRMP) training sessions. Mr. Gutshall said the crusher pit has been shut down and it will be winterized today.

Mr. Gutshall reviewed his department report to include: replacing a culvert by Bill Irwin’s former residence on Parker Canyon Road, getting caught up on road sign work, preparing an existing grader for trade-in, and re-writing the Transportation Plan over the next few months. Mr. Gutshall discussed putting the brush-head on the excavator so it can be used to brush the roads on and off all winter. Mr. Gutshall discussed touring the Trout Creek Bridge with an engineer and said Dan Coonce with the Local Highway Technical Assistance Council wants Boundary County to be involved in negotiations. 

Mr. Gutshall discussed financing for the new grader. Mr. Gutshall said Panhandle State Bank had implied that paperwork would be ready for him to review, but he hasn’t seen it as of yet. CAT’s financing is 3.2% and Mountain West Bank is 3.05% and Mr. Gutshall said he would contact the local bankers.

Chairman Dinning asked if there is a Road and Bridge mechanic on duty with the new winter shift for Road and Bridge. Mr. Gutshall said there will be a mechanic on call during the weekend shift, but there will not be an electrician readily available sitting in the shop. Mr. Gutshall said it depends on the situation, but he can get a mechanic at the shop within one half hour if need be. Chairman Dinning asked who mans the answering machine at Road and Bridge as far as checking messages. Mr. Gutshall said the messages are checked every morning. Chairman Dinning asked if Jim Ball has contacted Road and Bridge about specific trees he is concerned about. Mr. Gutshall said he knows there are cars and other objects sitting on county property. Chairman Dinning asked if there are any trees to the south that could fall onto the neighboring property. Commissioners decided to wait for Mr. Ball to contact the Road and Bridge Office.

Commissioners and Mr. Gutshall discussed chipsealing and drainage options for the area of the fairgrounds parking lot that doesn’t drain. Chairman Dinning asked about the possibility of laying pavement as he was thinking about a 12 foot lane between the barns. Chairman Dinning said he would like to know the cost. Chairman Dinning and Commissioner Kirby mentioned issues with dust. Clerk Poston said there is the possibility of grants for paving as that is how some of the sidewalks at the fairgrounds have been obtained.

The meeting with Mr. Gutshall ended at 9:20 a.m.         

Commissioners tended to administrative duties.

9:30 a.m., Courthouse Maintenance Jerry Kothe joined the meeting. Mr. Kothe did not present a written report and stated that he didn’t have much to discuss. Chairman Dinning said with the weather getting cold Commissioners want to make sure someone is available to make sure the furnace is working. Mr. Kothe said he spoke to Doug Dirks with Dirks Tree Care the other day and Mr. Dirks asked whether or not the remaining trees at the Courthouse needed trimmed. The cost was $330 per tree, according to Mr. Kothe.

The meeting with Mr. Kothe ended at 9:45 a.m.

9:50 a.m., Blue Sky Broadcasting Reporter Mike Brown, Bonners Ferry Herald Reporter Laura Roady, Airport Manager Dave Parker, Clerk Glenda Poston, Planning and Zoning Administrator Dan Studer, Appellant Craig Wheatley, and County Attorney Tevis Hull joined the meeting for the purpose of addressing Mr. Wheatley’s appeal hearing as it pertains to Planning and Zoning Application #13-049. The appeal hearing was recorded.

Attorney Hull provided a recap and said after the initial appeal hearing filed by Craig Wheatley, Commissioners decided to enter into mediation and there wasn’t a time frame imposed for that. Commissioners will have to decide within 30 days and render a written decision and finding of facts to reach that decision, which is to deny, modify, or uphold the application. At conclusion of the last hearing, the Commissioners directed mediation in this matter. Attorney Hull said there was to be a meeting or a series of meetings and just working between Commissioners, Mr. Wheatley, or his council to see if a determination could be made. After that meeting information was provided by Mr. Wheatley in an attempt to make a factual determination as to whether the court would mediate. During that time discovery was made as to the elevation presented to the Federal Aviation Administration (FAA), how the FAA had given their decision that the application violates airspace and the reason Mr. Studer denied the application. That was a big issue so Attorney Hull contacted Mr. Wheatley’s Attorney Marc Lyons to review the diagram and discrepancy in elevation of 25 to 30 feet that absolutely affects Mr. Wheatley’s ability to build. Attorney Hull said he had been able to meet with Attorney Lyons on November 15^th after ending a long trial and he received a letter about untimely filing. Attorney Hull said he knows from correspondence from Attorney Lyons that Mr. Wheatley was to receive an email about having an engineering study done. It was said Attorney Hull is here for the mediation process and not appeals process, and with that Commissioners can engage Mr. Wheatley.

Mr. Wheatley said he is acting in lieu of counsel. Mr. Wheatley said the term mediation was used loosely as we don’t have mediation here. Mr. Wheatley said at the close of the last hearing, within the last 60 days, Commissioners and he were to meet in order to solve the bigger issue. The county did not avail itself to that opportunity, according to Mr. Wheatley. Mr. Wheatley said he had a meeting in the hallway with Attorney Lyons and Attorney Hull and it was clear there would be dates given to discuss finding a resolution. Having an elevation study done, especially during the Thanksgiving holiday, is ludicrous and in lieu of litigation, it would be in the best interest to sit down and that has not happened in over two years. Mr. Wheatley said he hasn’t been able to use his land and he has not been approached in an official capacity, except by J-U-B Engineering. Mr. Wheatley said he still doesn’t know how much land the county wants. As far as height elevations, Mr. Wheatley said he can have Dick Staples survey his property for a 30 foot building and submit the information to the FAA, have it all turned down and get to the same point where we are right now. Mr. Wheatley said there needs be a conversation with Commissioners, Attorney Hull, and the Airport Board for a win-win situation, but he doesn’t see negotiations proceeding in good faith.

Mr. Wheatley said as for height elevation, how much ground elevation difference could it make to the FAA as he was told he’s in a protected zone and with the airport filing for an extended runway, it doesn’t matter how high. It’s just the fact that the airport has requested an extension so even a dog house wouldn’t be allowed.

Chairman Dinning said the other issue is allegedly what the examiner told him that Commissioners are not dealing with. Mr. Wheatley said this is the same area and same buildings. Mr. Wheatley said all three permits he applied for fall within that area the airport is requesting for expansion. Chairman Dinning said what Commissioners are trying to come up with is height at the north end so there could be a significant difference in elevation that would allow the potential for building. Mr. Wheatley said he understands that, but he disagrees. The height of the building is zero feet above ground level and Mr. Wheatley said he asked the examiner about that and was told it doesn’t matter how high as the property is in a protected zone. Mr. Wheatley said his property falls inconveniently into that area. Mr. Wheatley said he is in favor of expansion, but it’s a problem and the easy solution is the county has to get the FAA to fund land. The FAA has determined that nothing should be built there. Mr. Parker said from what he thought, there could be land that buildings could be built on so it would be important to get a second opinion on that. Attorney Hull said the person who told Mr. Wheatley this information is the same person who signed off on the paperwork. Mr. Wheatley said he could have Mr. Staples survey his property, apply to the FAA for 29 buildings, provide the GPS locations, send Mr. Studer the 29 applications, and then go through this process again when he’s denied.

Chairman Dinning said he’s trying to deal with three locations today, not the negotiations for the rest of land that Mr. Wheatley may want to incorporate what may or may not be built on. Chairman Dinning said there should be discussion with the examiner about the three parcels. Chairman Dinning said this is to determine what is exactly on the ground, not necessarily 29 sites. Off the end of the runway there was discussion about the lines. Attorney Hull informed Mr. Wheatley that Commissioners authorized him to contact him sooner than he did, but the delay was in his scheduling and he apologized to Mr. Wheatley for that. The issues are the three building locations and if Mr. Wheatley has another issue with a taking of the rest of his property that will have to be for a different day. Attorney Hull said his understanding is the person who conducted the analysis of the property is in Texas and he doesn’t know the area, and he just made his decision based on what was submitted. Gary Gates with the FAA Office in Helena, MT would have more knowledge. Mr. Gates is in charge of one-half of the airports in the State of Idaho. Attorney Hull said the FAA needs those footprints and the actual elevation so they can review it. Attorney Hull said the statement made that the height doesn’t matter wasn’t communicated from the FAA, just that certain building locations were not permitted. Commissioner Pinkerton said the reason for the FAA Office in Helena to review the footprints is because Commissioners were lead to believe building was possible. Commissioner Pinkerton said ultimately Commissioners want to see building as well as the expansion of the runway, but if it is zero feet above ground level, then Commissioners cannot do anything with that. Attorney Hull said then the matter gets into a takings analysis.

Attorney Hull said Mr. Gates need to be engaged in this communication. Attorney Hull said he doesn’t have a problem offering the letter to Mr. Gates and to the examiner. Mr. Wheatley said he would take care of the letter himself. Chairman Dinning said regardless of elevation Commissioners want to know if a building of any height can be built and that should be addressed to Mr. Gates and the examiner. Mr. Wheatley said he will send the letter to the examiner and Attorney Hull can forward it to Mr. Gates. Commissioners can set up another meeting, even a special meeting, once an answer comes back from Mr. Gates.

The meeting with Mr. Wheatley ended at 10:30 a.m.

10:30 a.m., Commissioner Pinkerton moved to go into executive session under Idaho Code 67-2345(1)f, to communicate with legal counsel for the public agency to discuss the legal ramifications of and legal options for pending litigation, or controversies not yet being litigated but imminently likely to be litigated regarding the airport. Commissioner Kirby second. Commissioners voted as follows: Chairman Dinning “aye”, Commissioner Pinkerton “aye” and Commissioner Kirby “aye”. Motion passed unanimously. 10:45 a.m., Commissioner Kirby moved to go out of executive session. Commissioner Pinkerton second. Motion passed unanimously. No action was taken.   

Commissioners tended to administrative duties.

Commissioner Kirby moved to amend the agenda to sign the Environmental Site Assessment Sponsor Summary of Airport Improvement Program Compliance for the Dinning, Speed, Merrifield and Byler properties as it is time sensitive. Commissioner Pinkerton second. Motion passed unanimously.

Commissioners tended to administrative duties.

11:30 a.m., Planning and Zoning Administrator Dan Studer met with Commissioners to discuss the possibility of merit of a complaint made by Dave and Debbie Miller to the commercial development permit applied for by Mack Worley. Present were: Jessica Bremer, Scooter Bremer, Boundary Economic Development Specialist David Sims, Blue Sky Broadcasting Reporter Mike Brown, Matt Bremer, Debbie Miller, David Miller, Pace-Kerby Realtors Joe Farrell and Darlene Schneider, and Travis Smith. The meeting was recorded.   

Chairman Dinning said the purpose of the meeting is to discuss the request for an appeal from David and Debbie Miller on the application filed by Mack Worley of Beaver Valley Backyard Garden Products. The meeting is not a hearing and it’s just for Commissioners to decide if there is merit to the Miller’s request and to go forward with a hearing. Commissioners said they would speak with Planning and Zoning Administrator Dan Studer and Attorney Tevis Hull about the need for a hearing.

Mr. Studer said he presented Commissioners with documents from Mr. Worley to include drawings, etc. Mr. Studer spoke of the commercial development permit application process. The subject property consists of 105.7 acres and the application is for a commercial building for the production of plant and plant by-product to be used for garden mulch. The application does require additional inspections, a permit to the Idaho Transportation Department has been applied for as far as obtaining access to Highway 2. The general location is the junction of Hermann Lake Road and Highway 2, according to Mr. Studer. The operator’s plan is to operate from 7:00 a.m. to 3:30 p.m., and the number of employees will be up to 10. There will be an estimated 40 traffic trips per day. Mr. Studer said also provided in Commissioners’ packet is an aerial photo view of the location and proximity of development. The concerns outlined by Mr. and Ms.  Miller are also listed in Commissioners packet and Mr. Studer read the letter into the record. Mr. Studer referenced his response to the Miller’s letter.

The county’s ordinance was changed in year 2011 and the subject area was zoned ag/forestry with a minimum lot size of 10 acres. Chairman Dinning asked Mr. Studer to explain the application process and what is involved with the term moderate use. Mr. Studer said if there were residences within 500 feet of the planned use, Mr. Worley would be required to apply for a permit, but the distances he measured were over 1,000 feet and approximately more than one-quarter of a mile. Mr. Studer said he found that residences on adjacent properties are over 1,000 feet from the allowed use. Mr. Worley’s application is within the specifications for moderate use and the number of proposed employees is less than the standards required to meet occupancy. Attorney Hull said this is referenced in Chapters 15.5 & 15.6 of the Boundary County Zoning Ordinance. The application doesn’t reflect a higher amount of traffic trips per day and the number of employees that constitute a higher use. The Comprehensive Plan guides also indicate this is compatible use for this zone. Idaho Code does apply as well as the Idaho Right to Farm regulations. Farming is a natural right and it shall be permitted throughout the state, ag facilities are not a nuisance except when there are improper or negligent operations and to be considered a public nuisance the business has to be proven to be improper or negligent. This is found in Idaho Code #22-4501 and this process was also in the 2011 County Ordinance.

Chairman Dinning said it was a rumor in the community that one person changed the Ordinance, but that is not true. Chairman Dinning asked if a noise comment was made. Chairman Dinning mentioned air and ground pollution, dust from by-products and chemical usage and he asked if those are issues that are addressed in the County ordinance. Mr. Studer said no, but for dust, etc., there are other agencies and he referred to the County Road and Bridge Department, Panhandle Health District for septic issues and the Idaho Division of Building Safety. Chairman Dinning asked about wildlife habitat, and Mr. Studer said nothing here would alert to a violation of the County’s Comprehensive Plan. As it pertains to traffic the County’s Ordinance allows up to 100 to 120 traffic trips per day, according to Mr. Studer.

Chairman Dinning said property values had been mentioned in the Millers’ letter, but he’s not aware of affects of ag to property values listed in the Comprehensive Plan. Mr. Studer said he would guess the Miller’s statement is hypothetical. There had also been no public notice, but that is not required as per the criteria, according to Chairman Dinning. Mr. Studer said that was correct. Chairman Dinning said the complaint refers to odor of by-products, but would that fall to another agency such as Department of Environmental Quality? The allowable business hours are 7:00 a.m. to 3:30 p.m., and that is “allowed” to be seven days per week. Mr. Studer said if the application was for a conditional use, Planning and Zoning would take a look at those hours of operation as it pertains to surrounding neighbors.

Attorney Hull said Commissioners are operating under Ordinance section 13.2.4, which is the criteria for the Board of Commissioners to determine if an appeal comes forward from this point. Commissioners have received an appeal and have addressed it on the next available agenda, which is today, and they will determine whether or not to move forward or dismiss the appeal. Chairman Dinning reviewed the chapter section allowed for the procedures to follow.

Chairman Dinning asked Commissioners if they see any procedural error. Mr. Studer said all procedures have been documented. Attorney Hull said he does not see any procedural error. Chairman Dinning said Commissioners would allow public comments.

Ms. Miller said Idaho Code statute #22-4501 refers to the right to farm and to perform agricultural activities, but Mr. Worley’s business is not an ag business, it’s an industrial/commercial business so why bring this up. Ms. Miller said she spoke to someone with the Idaho Department of Environmental Quality (DEQ) and this person has not been contacted by anyone connected with Mr. Worley’s business. A business owner has to go through the permit process for this to happen and this particular person at DEQ hasn’t seen anything come across his desk. It was stated there are three different permits Mr. Worley has to apply for. Chairman Dinning said the county’s ordinance is written that the county will not enforce the permits of other state agencies. According to this county ordinance Boundary County has approved Mr. Worley’s application, but Mr. Worley has another responsibility to get those other permits. The county does not want to regulate agencies and withstand all of the costs for rules and regulations of another state agency.

Ms. Miller informed Commissioners that Mr. Studer has been giving Mr. Worley courtesy phone calls so why hasn’t she and her husband been receiving those courtesy calls as well. Mr. Miller said the neighbors have wells and they are concerned about affects to the wells as how much water this business operation will use is not known. Mr. Miller also spoke of a grinder used for this business and how loud that can be as well as the type of traffic this business would consist of such as tractor trailers. Ms. Miller said she heard that the noise level is supposed to be about the same as a neighbor mowing their lawn. Mr. Studer said the Comprehensive Plan states moderate use in the forestry zone can have a noise level at the boundary that should not exceed the sustained use of a lawnmower.

Ms. Bremer asked how Mr. Worley’s application falls under the definition of agriculture. Mr. Miller said it is for agriculture. Chairman Dinning mentioned that the Comprehensive Plan is written to promote economics. Ms. Miller said she had been told the business operation shouldn’t be a problem as there aren’t many people who live in that area and that statement came from Mr. Studer. Mr. Sims said there is some confusion about the business as it relates to the aquifer and pollution. Behind Moyie Springs City Hall there is a business that uses a grinder to shave bark and after the bark is shipped. Mr. Sims said he doesn’t know what water requirements are, but thinks it could be for a restroom. Mr. Farrell said he was the realtor for Mr. Worley and he was told by Mr. Worley that the water will be used for domestic use. Mr. Sims said Idaho has the right to farm statute, natural resources issue are very important and this county is natural resource based. The Idaho Code section states the right to farm is permitted use throughout Idaho and the definition of this was read aloud.

Mr. Smith clarified the operation behind the City of Moyie Springs Office is not the same kind of grinder this business would use. It was stated that the definitions are broad and if the business falls under general agriculture practices, it cannot be declared a nuisance and agriculture and silviculture, etc., are uses throughout the county. Mr. Sims said if you look at those uses, he doesn’t think the use can be restricted and he also referred to General Feed and Grain. Mr. Smith asked about buffer zones and who regulates these zones as he is concerned about the operation hours of 7:00 a.m. to 3:30 p.m. Mr. Smith asked how this operation would get shut down. Chairman Dinning said the application did not state if the hours are seven days per week. Commissioners said they are just here to determine if the appeal had merit to warrant a full public hearing.

Attorney Hull said Commissioners have gone well beyond what they could by allowing public input as that is not a procedure used and they couldn’t base their decision on what has been received.

Ms. Miller asked about impact as far as benefiting local businesses. Mr. Sims said this business will bring outside dollars into this region. Chairman Dinning said Commissioners need to decide if the appeal has merit. Mr. Studer explained the process for his enforcement of a permit. Mr. Studer said the Idaho Right to Farm rule does apply. Noise levels were briefly mentioned and it was said there is no decibel level for the county. Mr. Bremer said if the distance is 1,000 from another residence, where is the business? Ms. Bremer said she lives right on the highway and this business is right across from her house so the business has to be within 1,000 feet. Attorney Hull said the Ordinance actually refers to 500 feet. Ms. Bremer said she may even be within 500 feet. Ms. Miller said she was also told Mr. Worley can have a 4,000 square foot permanent structure, but in addition he is also allowed a non-permanent structure of up to 8,000 square feet. If you Google the already established business, there is more than this in feet that are permanent buildings that aren’t going anywhere. Mr. Studer said Mr. Worley is allowed 8,000 feet for storage in addition to the 4,000 square feet. Barns and ag buildings often exceed that, according to Mr. Studer. Ms. Miller questioned what is in an ag zone.

Chairman Dinning said Commissioners need to determine going forward with a public hearing or have this matter handled in an open meeting. Attorney Hull said Commissioners can dismiss the appeal or if they accept the appeal, then Commissioners can hold a public hearing and invite testimony or hold an open meeting and not invite testimony. Chairman Dinning said if Commissioners choose to dismiss the appeal, the decision needs to be based on whether or not the process has been followed, discussion of use and whether the use is industrial or ag use, and decide how to proceed. Ms. Bremer said if her residence is within 500 feet, then the process hasn’t been followed properly. Mr. Studer said he hasn’t physically been to the site. Ms. Bremer said if Mr. Studer went to the site, he would see the distance. Mr. Studer said he could stand to be corrected. Ms. Miller asked when measuring is it straight as the crow flies, and Mr. Studer said yes. Mr. Studer said the road access to the business would not be developed until spring. Attorney Hull asked if the appeal was timely. Mr. Studer said yes, the issue date was November 12^th and he was contacted by Ms. Miller and later that same week was contacted by Mr. Miller. Attorney Hull said the letter was received November 18^th. Mr. Smith said the hours are the biggest issue for him as a tub grinder is loud. Alan Winkelseth has certain hours to operate and cannot go beyond five days per week. If a business can get away with longer hours, they will. Mr. Bremer said he can’t comprehend how Mr. Worley’s business is ag related. Gravel pits were mentioned and Chairman Dinning said if someone wanted a gravel pit in an ag zone, it would fall under the same guidelines. Mr. Studer said yes. Chairman Dinning asked if Commissioners can wait to determine merit until Mr. Studer has had a chance to determine the 500 foot distance. Chairman Dinning said to be honest, if he was the owner, he would just move the business beyond the 500 feet. Attorney Hull said there is only one of two decisions Commissioners can make since no error in the process has been made. Information on the distance of 500 feet can be determined by holding an appeal hearing and getting additional information, according to Attorney Hull.

Commissioner Pinkerton moved to hold an appeal hearing, with the time to be set in the future, to consider the appeal filed by Dave and Debbie Miller as it pertains to a Planning and Zoning application filed by Mack Worley of Beaver Valley Backyard Products. Commissioner Kirby second. Motion passed unanimously.

It was said in Chapter 13.2.4.2, following the appeal review the Zoning Administrator will notify the appellant by mail of the decision. Attorney Hull said the Millers will have 10 days to remit a fee to continue the appeal process, but traditionally Boundary County has not had a fee so there will not be that fee. The appellant, affected parties and Commissioners will receive notice of this. Attorney Hull said the affected properties are generally the surrounding area and he suggested Ms. Miller forward the names of the affected parties to Mr. Studer so he can send them notices.  

The meeting to discuss the merit of the Miller’s appeal to Mr. Worley’s application ended at 12:30 p.m.

Commissioners recessed for lunch at 12:30 p.m.

1:30 p.m., Commissioners met for the afternoon session with Chairman Dan Dinning, Commissioner LeAlan Pinkerton, Commissioner Walt Kirby, Clerk Glenda Poston, and Deputy Clerk Michelle Rohrwasser.

Chief Deputy Clerk Tracie Isaac and Restorium Administrator Karlene Magee joined the meeting.

1:30 p.m., Commissioner Kirby moved to go into executive session under Idaho Code #67-2345(1)a, to consider hiring a public officer, employee, staff member or individual agent. Commissioner Pinkerton second. Commissioners voted as follows: Chairman Dinning “aye”, Commissioner Pinkerton “aye” and Commissioner Kirby “aye”. Motion passed unanimously. 4:50 p.m., Commissioner Kirby moved to go out of executive session. Commissioner Pinkerton second. Motion passed unanimously. No action was taken.   

There being no further business for the week, the meeting adjourned at 4:50 p.m.

                                                            /s/

                                                            DAN R. DINNING, Chairman

ATTEST:

/s/

GLENDA POSTON, Clerk

By: Michelle Rohrwasser, Deputy Clerk