Boundary County Planning and Zoning Commission
Minutes April 19, 2018
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Attending
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Names
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Public |
Phil Sweet, Darci Price, Andy Scott, Rick Meyer, Han Beggerly, Kris Quillin, Jim Greenslitt, Levi Falck, Brian McDonald, Gerald Higgs, Steve Tanner |
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Planning & Zoning |
Counselor Tevis Hull, Caleb Davis (Chairman), Wade Purdom (Co-Chairman), MarciaVee Cossette, John Cranor, Scott Fuller, Adam Isaac, Rob Woywod |
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Absent |
Ron Self |
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Staff |
John Moss |
[Planning & Zoning minutes are transcribed from the conversation that takes place during the meeting. Topics are condensed, eliminating verbatim comment in order to condense the material. Key points are included in this extraction and all votes taken are recorded.]
At 5:30 pm Chairman Caleb Davis opened the meeting and presented the evening agenda. After identifying the presence of a quorum Davis asked the members of the Commission to introduce themselves.
Following the introductions Davis asked the Commission if there were any changes or corrections to be made to the Minutes of the March 15, 2018 meeting. There being none, Davis asked for a motion to approve the March 15 Minutes. Ron Self so moved, seconded by Rob Woywod, and there being no further discussion Davis called for a vote. The votes were as follows:
John Cranor - Aye, Tim Heenan - Aye, Scott Fuller - Aye, Marciavee Cossette - Aye, Wade Purdom - Aye, Adam Isaac - Aye, Rob Woywod - Aye, Ron Self- Absent, Caleb Davis - Aye
Tally: Nay (0), Recused (0), Aye (8), Absent (1), Abstain (0)
The motion to approve the March 15, 2018 minutes was unanimous.
Next, the Chairman announced the reopening of the (continued) Conditional Use Hearing tabled on February 15, 2018 regarding applications 18-042, 18-043, 18-044 and 18-045 by Levi Falck. This application is for parcels #RP62N01E142861A, #RP62N01E142876A, #RP62N01E142870A and #RP62N01E142841A, totaling 5.51 acres in the Commercial/Light Industrial zone.
Applications 18-042, 18-043, 18-044 and 18-045 are a request for a Conditional Use related to placing a Commercial junk yard on parcels in a Commercial/Light Industrial Zone.
Opening the continued hearing to public comment on applications 18-042, 18-043, 18-044 and 18-045, Chairman Davis read the Quasi-judicial script including the conditions necessary to grant approval (9B18LOV1, Section 7.7 Considerations and 7.8. Terms and Conditions) and determined there was no one on the Planning Commission having ex parte contact. Tim Heenan pointed out that the picture displayed on the screen being monitored by Wade Purdom was not showing a current view of the Falck property. Purdom identified the view as being taken by Google Earth, and the date of the picture is July 2014. Davis so noted.
Chairman Davis asked if the applicant wished to make an opening statement concerning applications 18-042, 43, 44, and 45?
Levi Falck began by saying he has provided a site plan which establishes a certain perspective of the layout of his property. He pointed to the screen displaying a Google Earth view of the 3-mile area, inclusive of his property, and said the site plan relates to the property seen on the screen. He acknowledged Heenan's reference to the age of the view shown, saying this was probably taken sometime in 2014. However, the display accurately shows the relationship of the parcels and structure locations. He pointed out that for some time he has had plans to screen the property with trees which are available to him but which have not been planted because of the time of year. He said he had planned to place them as a screen but that fencing as an alternative was more practical. Davis asked what type of fence was being considered? Falck replied that an eight foot fence, preferably made of wood as opposed to chain link, was being considered. He said that the site plan shows he intends to place behind the parts store the cars that are being processed. This was always the plan, but after the parts store fire this plan went awry. After the fire, he stated he was simply providing a place to get abandoned and derelict cars off the road, that in addition to being authorized by State Police to pick up and store vehicles abandoned on the highway, his business involved repairing cars, taking abandoned and derelict cars then draining them of all fluids and removing all salvageable parts for subsequent sale. He has an auto body shop so that when a vehicle can be restored and made operable he can do so. Davis asked Falck the nature of his current plans.
The applicant replied that by looking at the screen, the building on the south is used for car repair while the building on the north (which burned in 2016) is used for auto parts. The building on the east is 95% restored after the roof caved in a year ago to snow. This building is used for warehousing parts removed as part of the cleanup/stripping process to obtain all salvageable parts. Falck continued by saying that the price of metal has dropped to the point where it is a negative cash flow, it would cost considerably to crush and haul the derelicts when the cost of hauling is more than would be gained in selling those derelicts. He said that as the price of metal is now rising, after 4 years being cost-prohibitive, the price of metal is now rising to the point where he can have these crushed and taken away. The roads have been impassable until probably some time in May, and that is when the crusher can come and remove all of these derelicts.
Chairman Davis asked the Commission if they had any questions of the applicant. Tim Heenan asked about the trees and what are the plans for planting these? Falck said that he has been discussing with staff the location for planting trees. Because the property dips, he said, any kind of fence would not be tall enough to screen the back of the property from street view. He said because the property line dips a row of trees would be necessary to fully screen the view. Heenan asked if the trees would be running north/south and the reply was east/west, along the north and south property lines.
Caleb Davis asked about the plans for crushing and how many cars are there to be crushed? Falck replied that about 2 months ago a tally was taken and the count was between 400 and 450 cars to be crushed. There will be some vehicles that won't be crushed, he said maybe 50 to 80, for various reasons, but most will go. He also said that the crushing operation, when it begins, will run from 8:00AM until 3:30PM.
John Cranor asked since there seems to be a lot of derelicts in front of the buildings if maybe these would look better behind the buildings? He also asked if the presence of derby wrecks can be explained in front of the property? Is there a way that these can be placed such that there would not be a 'staging area' out in front? Falck replied that yes, these will be moved as the clearing progresses. However, he said, there is a security benefit in having them up front because they serve as a deterrent to those who want to enter the property after hours, intending to make their way to the rear of the property they realize they cannot get in and out quickly. He went on to explain that prior to the fire in 2016 the front lot was open for parking, the store was open and there was no congestion up front. However, with the fire and subsequent lack of customer traffic, the front area was an open invitation for people to come browse around in the back, and the placement of cars up front discouraged this activity.
Falck went on to explain that with the fire closing the parts supply store the business direction shifted to buying and selling more and more cars, placing parts on the web site http://www.car-part.com/ and highway-oriented traffic disappeared in exchange for the web-based commerce. This has contributed to the number of vehicles ending up on the property to be crushed. In the future, crushing will eliminate this volume of cars and the plan is to maintain a lot fewer cars on the property than you see now. Davis asked if the front, the west side of the parcels, were to be fenced? Falck replied that there were no immediate plans for this, but that as seen in the site plan the view of the rear of the property was expected to eliminate 90%-plus using fencing and trees planted (as per the site plan). He said that an eight foot fence is planned, not twelve, because the rear of the property as seen by using a transit from the road indicates an eight foot fence - and trees planted strategically where the land dips, will be sufficient to screen the premises.
Davis asked if the trees were sufficient to screen the property from a side view, from neighboring property? Falck replied that initially the trees would be spaced far enough apart to allow them to grow and eventually stretch the space between them, but screening from the side, at ninety degrees along the property line, would have spaces between the trees so no, not probably 100% screened at first, at least until the tress grow out a bit. Davis then asked how much time it will take to complete the planting? Falck said the planting will commence shortly, while there is enough time to get the trees in the ground and commence watering to enable the trees to adjust for the coming fall dormancy. He also replied to the question of timing for the fencing, saying by fall the wood (an alternative to Cyclone) fence would be up. The fence, whatever form it takes, should deter vandalism and theft while providing a privacy screen, he added. He also said that the airport has already placed a fence along the east property line and that this area probably doesn't need screening. He added that he would take care of any trees planted, and maintain the fence in good repair.
MarciaVee Cosette asked about the fluids that come with these cars; Oil, transmission fluid, gas, etc.? Falck said there is less spillage of materials like this than there is in a grocery store parking lot. He said that all of these fluids are drained and disposed of properly.
Davis then asked if Mr. Falck is working with Boundary County Weed Control? Falck replied that he has had communication with Dave Wenk and that it was agreed that up to now there has been too much snow on the ground to perform any kind of weed inspection but that after the snow clears an inspection will occur.
Chairman Davis asked if there were more questions for Mr. Falck and, there being none, asked Staff for a Staff Report and any Staff Analysis. Staff replied that the Staff Report is unchanged, but that Staff Analysis had been modified to incorporate recognition that the Commission has responsibility for the County Ordinance, NOT for any guidelines or restrictions of other agencies such as State or Federal.
Chairman Davis asked the Commission if they had any questions of Staff.
Heenan asked for clarifying the parcel sizes, and staff replied that three are approximately 1 acre while the fourth is 2 1/2 acres in size. Davis asked if these might be considered non-conforming parcels, as it stands? Staff responded by saying that as it stands the parcels require a conditional use permit and until a permit is issued it is a nonconforming parcel as long as it has more than three inoperable vehicles on it.
Chairman Davis asked if there were any more questions for staff and there being none, asked if there is anyone present wishing to speak in favor of applications 18-042, 43, 44, and 45?
Phil Sweet spoke saying he has lived in Boundary County for 52 years, even before the airport, and that Levi Falck's location is ideal. He is in a zone that encourages Commercial Junkyards and Boundary County needs a place to get rid of junk cars rather than having them stacked on property as eyesores. When the airport came, with its noise and space requirements, nobody complained because they saw the benefit it provides. It's the same thing here, where the need exists and the zone is right and there should not be any complaints. Davis asked if Mr. Sweet thought the plans offered by the applicant were sufficient or if they need to be changed? Sweet said if you look at other areas, when you drive to Spokane, you see that Levi is in a good location and his plans include not just serving the community but keeping the appearance of the property looking good is the right idea. Heenan asked where he lived, and Mr. Sweet said just south of the airport.
Unintelligible name (not signed in) said she thought the idea of fencing was a good one, and why did the county wait so long to do anything about it?
Steve Tanner said he was in favor of Levi's application since when you need parts this is a good place to go. Also, he read from the Idaho State Constitution, quoting here: "APPROVED JULY 3, 1890. SECTION 1. INALIENABLE RIGHTS OF MAN. All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety." Mr. Tanner concluded by saying that he felt all those opposed to Mr. Falck's application should consider his right to possess and protect his property.
Han Beggerly said that people from this town, or those passing through, can find what they're looking for at Levi Falck's. He said that he can rely on Levi for help if he needs it, and that Levi supports this community in many ways. He stated that he is strongly in favor of Mr. Falck's application.
Chairman Davis asked if there is anyone present wishing to speak uncommitted to the applications? There being none, Davis asked if there is anyone present wishing to speak opposed to the applications.
Gerald Higgs opened by saying he is a long time resident of Boundary County. He said the applicant wishes to do business in the county without doing the right thing. He started his business by bringing material onto his property in violation of the County ordinance and in total disregard of the process it takes to get the necessary permits. Higgs said he is a former Planning and Zoning Commission member so he knows what must be considered but that there is still some need for objectivity here, this is all about what's good for the community and that's a decision you're going to have to make. The fencing issue has not been adequately addressed. The problem is the elevation of the highway over the location where the cars are placed, which means there is no way a fence can block anything from view.
Then there's the choice of trees, Higgs continued. Spruce is a terrible choice. This species is vulnerable to disease and can cause a maintenance nightmare because insect infestation causes them to not reach their full height and the problems are very difficult to control. Even if they have no disease it takes from 15 to 20 years for these to mature. That's a long time to wait for a screen.
On another note, Bonners Ferry is a hub, a focal point in this area of the country. Coming from the south, the first thing you see in this county is another junkyard, a real eyesore. If we look at Levi Falck's application and we use the junkyard south of us as a yardstick, what does this message say about Bonners Ferry? What if Mr. Falck decides to sell his property? What kind of mess will be left behind for someone to clean up? Because this location is such a mess it cannot help but reduce surrounding property values and I don't think this is all in the best interests of Boundary County. Concerning the junkyard down south, I have complained about this in the past to Mr. Dan Studer, the Administrator at the time, and the lack of any ability to enforce rules, the inability to apply a standard that can be referenced in this instance concerning Mr. Falck's application, suggests a weakness in the ordinance. Tim Heenan asked Mr. Higgs what he thought it would take to mitigate that site. Higgs' response was that it might take a different species of tree (he suggested a name (White fir, also commonly called concolor fir), but he didn't know for sure since that isn't his area). Editor's note: This species is native to this area and can grow from 130 to 160 feet tall. Davis then asked Mr. Higgs what his Planning and Zoning experience has been, and has he read the ordinance? The response was he had read it when Dan Studer was the Administrator but has not read it since. Davis then asked if in his opinion Mr. Higgs thought this application should be denied or that there should be Terms and Conditions placed on the permit. Mr. Higgs responded by saying that based on the applicant's disregard of the ordinance in the past and his lack of respect for the procedures necessary to conform to the ordinance, in his opinion his answer would be to deny the application. Davis said that he understood Mr. Higgs' perspective but the Planning and Zoning Commission is not able to enforce the law. He thanked him for his opinion, and asked Mr. Higgs on what basis in the ordinance would a denial be based? Higgs said it doesn't matter what the ordinance says, that if Levi Falck hasn't respected the ordinance in the past what makes you think he will respect it after the fact. You, the Planning and Zoning Commission, he continued, have the subjective right to deny the application even if he says he will comply. Heenan asked for clarification, would you grant the application if there were Terms and Conditions attached? Higgs said yes, but it was up to the Planning and Zoning Commission to make sure the Conditions are met, not like what happened down south with the mess that's down there.
There being no further questions for Mr Higgs, Chairman Davis thanked him and asked if there were any more wishing to speak that were opposed to the application.
Kris Quillin introduced herself and spoke next, saying hers is the parcel just north and adjoining Falck's property. She does not live here anymore, but her children and grandchildren do. On the overhead screen for all to see, Kris Quillin pointed to the property identified as belonging to Levi Falck, the applicant. She said that may be where the property is but it sure does not look that way now. She said it is an absolute mess and cars are overflowing right up to the street. Wade Purdom identified the screen view as coming from Google Earth taken circa 2014 and she said that explains the difference but it doesn’t help to look at it at any time but for sure it is much worse now.
She then stated she has something she wants read into the record:
"I oppose the application for a Conditional Use Permit. I do not want this next to my property. I am asking the Commissioners to deny this application. I believe this Conditional Use will have an adverse effect on my property and it will severely limit the purposes my property can be put to because I will have a commercial junkyard next door.
Now, my property is being used for agricultural purposes. This is not a long-term use of the property. It is 10 acres in size and has an opportunity to be used commercially. There are many uses that could be applied to this property that would be unrealistic if there is a commercial junkyard next door. This neighbor's property has been a mess for years. He has not complied with requests to clean it up; now he wants a permanent Commercial Junkyard! Why does the Commission reward this kind of behavior by giving him a permit? Yes, you can make conditions that Mr. Falck must comply with, including fencing and trees, but things will not get any better: junkyards are junkyards. Mr. Falck has not maintained his property in the past so what makes the Commission believe he would, including putting up a fence or trees, in the future?
If the Commission is convinced to issue the permit then I ask the Commission to include a requirement to organize his junkyard in a far more workable manner. I am attaching several pictures that illustrate my suggestion. The top two are Mr. Falck's property, the others were taken Feb 15, 2018 and as you can see it's very messy. The last picture is a junkyard in Coeur d'Alene.
Highway 95 is the gateway to the City of Bonners Ferry. Why would you want to place a junkyard where people are entering the city? According to the Zone maps there are other areas zoned Commercial/Light Industrial in the county - so I ask you to please reject this request for a Conditional Use Permit"
Davis asked Ms. Quillin if she would quantify the effects on her property? She replied by saying she had dealt with a Realtor last year who asked if hers was the property next to 'that junkyard'. When she said yes, the Realtor suggested that she wouldn't be able to get as much for her property as would be the case if that junkyard weren't there. So yes, there is a direct detrimental value to her property based on the presence of a junkyard. Continuing in response to the next question she said the agricultural use (alfalfa) of the property is not affected by the junkyard.
Davis asked if there were any conditions that could be imposed on the Conditional Use and Quillin replied "I do not want it! A junkyard next door is a junkyard! That is a wonderful commercial property in potential, located right off the south corner of a major intersection, but businesses that are businesses really don't want to look at it". Heenan asked if the property is on the market right now, and the response was no, that there is a 5 year agreement right now with farmers to use the land and that agreement is up this year.
Davis thanked Quillin and asked if there were any more opposed? Darci Price introduced herself and said the parcels involved are in a location that once held respectable businesses, had nice buildings and were well maintained, including an auto supply store that at one time sat on this property. She expressed opposition due to the lack of industry shown by Levi Falck since taking over the business. She said that she is concerned that the work taking place now does not ensure the removal of fluids and hazardous waste and that nobody is overseeing the work taking place to ensure it is safe.
She said the Selkirk Loop tourists, 12,225 vehicles pass by every day, they see the property as they go by, and she places no confidence that Levi will satisfy requirements asked of him. Heenan asked if Falck complied with the Conditions, would that be OK? Price replied yes, if there are enforcement procedures in place and he complies, but this is still not a good location for a junkyard. This is a prime location and a perfect place for a business but NOT a junkyard. She took her seat.
Davis again asked if there were any opposed to the application. Brian McDonald introduced himself and said he was curious as to how much Commercial/Light Industrial business is in the county? Staff responded by saying there are no records indicating the presence of or type of businesses in any of the zones. The County does not issue licenses other than for a Commercial Placement Permit for a business but a Commercial Placement Permit is not a license and there are no statistics available to answer that question. Purdom pointed out, referring to the overhead screen that showed the parcels by zone, that the length of the property along Highways 2 and 95 in the Three-Mile area, are zoned Commercial/Light Industrial with a few parcels showing as Industrial. So by definition, all of the parcels in this area are owned by individuals who share the same zone definition, including that of Ms. Quillin. McDonald said the conditions seen at the location of the junkyard are indicative of a need for enforcement. He asked how difficult is it to enforce the ordinance in this location? This question was directed to staff, who responded by saying the responsibility of the administrator is to respond to a notice of violation, not to go on any inspection tour looking for violators. The ordinance provides a procedure for reporting a violation and once this is initiated the administrator contacts the potential violator and makes every attempt to gain compliance, if in fact a violation exists. This procedure is spelled out in Section 4 of the ordinance. It all begins, the correction process, with someone coming to the administrator and reporting a violation. In the absence of a report, no action will be initiated. McDonald asked just when or where does corrective action take place? Staff replied by saying that in the event compliance is not satisfied after notifying someone that a complaint has been filed and the situation remains unchanged, a complaint will be turned over to the sheriff for further enforcement action. McDonald asked if this is this a non-conforming parcel? Staff replied 'No'. Is this a public nuisance? Staff replied 'no'.
Price interrupted and asked whether there had been a response from ITD or IDEQ? Davis replied and said yes, but the requirements are voluntary and are communicated between the applicant and the agencies. He said there is nothing in that communication requiring Planning and Zoning involvement.
There being no more speakers opposed to the application, Chairman Davis asked the applicant if he wished to make a closing statement?
Levi Falck stood at the microphone. He said "I’ve heard about the way my property looks and how I’m not compliant and that I have no respect for property. I have shared with Mr. Moss the status of my father’s request for a Special Use Permit concerning the southern parcel which I believe grandfathered my property under the current ordinance. This permit could not be found by Mr. Moss but because I’m wanting to do the right thing I’ve followed the suggestion that all of these parcels be given the same protection that I feel I have on the one parcel, the southern parcel, that my father pursued. So, I want to put up a fence and I want to meet the rules in order to comply.
I believe Kris Quillin is right, she is right next door to a junkyard; but it is what it is. I want to be less conspicuous and put up a screen of some kind, a fence or trees or both, but it is what it is. I want to comply with the ordinance and whatever conditions are made and will try to do that.
I’ve bought the parcels in stages; first was my father’s parcel, the southern parcel of 2.5 acres. Then in 2014 the next parcel, and in 2015 the two northern parcels as my business grew. But I’ve always tried to be compliant as far as I knew there were conditions to be met. Perhaps the latter two parcels don’t need a Conditional Use Permit but all parcels work together to support the businesses I own so it seemed that applying a Conditional Use Permit to all four parcels would show my interest in truly being compliant.
Trees? I don’t know much about tree species, just that if they keep their needles all year long they serve better as a screen. I don’t know about moss on trees doing damage or what would make it hard to keep them alive. I see lots of trees that are doing OK but maybe there is a tree that works best that I should use. I am thinking about putting a fence up in addition to trees because of other considerations such as security and vandalism.
I am sensitive to being compliant and don’t like to hear anyone complain that I’m not compliant. I am here now because I want to be compliant. There has never been a time when that is not true. That’s all I have to say."
Davis asked if anyone had questions of Mr. Falck. There being none, Chairman Davis then closed the hearing to public comment and asked the Commission to consider the application and the comments received, including comments received in context with prior meetings regarding this application. Davis said that he knew Tim Heenan was concerned about the establishing of Terms and Conditions and if this might be a good time to ask legal council?
Counselor Tevis Hull replied by stating that in Section 7.8. Terms and Conditions, you have the authority to impose terms and conditions but the unfortunate situation is that if you impose a condition that hasn’t or can’t be met then Section 4 comes in to play and someone has to complain, the applicant is then notified of the complaint and an attempt is made on the part of the administrator to gain compliance to resolve the issue and the administrator makes every effort to work through this. There is a reasonable amount of time involved here, working to resolve the issue and come into compliance but if not then the administrator files a complaint with the prosecutor’s office and then the prosecutor is involved. There is an impression in the public’s eye that the resolution, the problem being complained of, is taking too long to resolve but the intent of this process is to comply with the Comprehensive Plan and make every effort to both have someone’s property rights recognized and at the same time recognize when the rights of others are being denied. This procedure takes time and while it is taking place nobody is happy, not the person whose property has had terms and conditions imposed and not those who feel their rights are being denied. So there are good success stories where someone has complained and a letter sent where it has come to our attention that such and such is happening and the person who is being complained of has said oh I didn’t mean to do that or oh I’m sorry and have corrected the issue. Your responsibility, in viewing an application such as this is to recognize it for what it is, a conditional use. You make the determination as to what conditions might be applied such that the applicant, in meeting these terms, would be able to use his property in such a way as to not offend his neighbors while at the same time gain the use of his property in such manner as is being applied for. So, this is a process, it’s not a perfect process, but it is what we have to work with.
Tim Keenan so we can’t set conditions upon which a permit would be granted, but rather we set conditions as requiring compliance with at the time a permit is issued, perhaps establishing time limits beyond which compliance has not been met and then enforcement kicks in?
Tevis Hull the latter is correct, conditions and related timing constraints are tied to the permit when issued.
Tim Keenan so when a violation occurs the permit is taken away?
Tevis Hull no, a cup once issued goes with the land, it doesn’t matter the character of the individual to whom the permit was issued but rather the nature of the permit that was issued and the wording of any terms and conditions so applied.
Tim Keenan so if a citizen complains then oh well, we look at section 4 to determine enforcement?
Tevis Hull correct, if there is nothing spelled out in terms and conditions of the permit then there is nothing to enforce and that’s hard for people to swallow but when you look at the complaint you must find grounds in the wording of the Conditional Use Permit or there is nothing to enforce.
Rob Woywod this is a zone that allows junkyards and if there are conditions set then there are guidelines in place but if there are no conditions how to you regulate a junkyard? If we’re going to place conditions on the permit then we should work with Levi and make sure he can fulfill those conditions.
Caleb Davis I understand, and he has already said there are target dates he has agreed to meet.
Rob Woywod I also think we should get an answer regarding the question of trees.
Caleb Davis I don’t think we can regulate or require anything specific concerning the trees. I’m going to read Section 10.5.3. Which is the General Provision for Junkyards; which states in part but is very explicit: “10.5.3.1. All junkyards will be screened, either by opaque fencing, natural topography or vegetation sufficient to block the use from view from any adjacent property or public right of way and to prevent trespassing. When fencing is used, such fencing will not exceed twelve (12) feet in height. No scrap or junk materials will be stacked, stored or piled to a height exceeding the height of the fence.”
I draw your attention to very explicit verbiage: “sufficient to block the use from view from any adjacent property or public right of way and to prevent trespassing”. These are several ‘will be’ conditions that are necessary to establish a junkyard. I am in agreement concerning a lot of opinion in this room concerning a lack of care in maintaining the property and so here we have an opinion before us and what is the Board’s opinion as to whether or not it should be approved or denied, before we even get into consideration?
Adam Isaac if there is a condition requiring enforcement what are the procedures involving a court of law?
Tevis Hull replied, if it goes to enforcement the first two occurrences are considered an infraction, with a maximum fine of $100. If it goes beyond that, or becomes a misdemeanor, that fine is not to exceed $1,000. Adam Isaac anything beyond that? Tevis Hull It does allow for anything beyond that, injunctive action. That would be subject to a court order citing non-compliance for a period of time for operating in non-compliance of a permit. Rob Woywod who would handle this complaint procedure? Tevis Hull it would be the prosecutor’s office. Caleb Davis is this like the death sentence in college sports? Tevis Hull this would be something like holding over someone’s head as a carrot to come into compliance since if you stop someone from doing business you stop them from earning an income. This is not a criminal act, it is a civil act; an infraction is not a criminal action.
Tim Heenan asked how often has someone imposed an injunctive action like this? Tevis Hull said he has never seen one. The ordinance does, in Section 4, recommend compliance and we always look to the Comprehensive Plan for guidance in issues like this but they still want compliance and that’s why you start by going to the administrator first to see if they can’t work things out.
Rob Woywod I have a question for Staff: Does the applicant believe he is grandfathered in?
Staff - the applicant believes that one of these parcels received a Special Use permit from the Planning and Zoning Commissioners sometime around 1990 to 2003. I have not been able to find such a permit, although I have read minutes which indicate the Planning and Zoning Commission agree with the concept of storing automobiles for a short period of time prior to crushing and hauling them away. I see no evidence of a formal hearing, but the applicant believes there was such a hearing. Although there may have somehow been such a hearing the description of the current applications far surpasses anything that may have been granted years ago, My suggestion to the applicant is to combine all 4 parcels into this request, thereby providing an umbrella for all four parcels in the future, said umbrella far exceeding the scope of a permit that may have been issued but for which I can find no evidence. Bottom Line - I have no permit on file but I do have copies of an old Planning and Zoning meeting where the activity on the Falck property was discussed and the Commission members agreed in concept to the idea of storing for a short period of time a few derelict vehicles which would then be crushed and hauled away. All of this activity was to take part in the rear of the southern parcel, the largest of the four being considered today.
Tevis Hull just to add to what has been said, there is no sign of a Conditional Use or permit of any kind that I’ve seen, and it’s important to note that at this point here we’re not making an opinion as to what may have been in the past. I think the purpose of avoiding that grandfather issue is that if you approve and support the current application this would supersede anything prior and would far surpass the guidelines or restrictions that may or may not have been applied in the past.If you approve this application the conditions you impose would be the only conditions applicable to these parcels. We appreciate Levi bringing this application to us and if it is approved than regardless of what may have been in place becomes replaced with this agreement.
Adam Isaac wondered how to deal with persistent violations? Counselor Tevis Hull said that multiple issues involve adjudication which may be civil action coupled with injunctive relief.
Adam Isaac asked if there might be a permit issued for just 1 parcel, limiting the derelicts to one but not all parcels?
Rob Woywod asked about doing one parcel at a time? Staff responded to both questions by saying the applications were joined because the same owner, same application, owned four separate parcels but all were involved in the same practice of storing derelict vehicles.
Isaac says he still favors limiting the area allocated to car storage. He pointed out that Section 7.8..5. and 7.8.6. suggest the area can be specified to limit required use so that just part of the four parcels could be specified as allowing the storage of the derelict vehicles.
Staff replied saying that the difficulty is that the application, storing derelict vehicles, occurs on all four parcels. Trying to restrict this use to a single parcel, or parts of all of them, is problematic because all four parcels are involved in the storage of these vehicles in one way or another: preparing them for parking (for example, draining fluids and removing hazardous material) takes place in one location, removing available parts takes place in another, storing these parts is warehoused in another location, placing these cars in a location prior to crushing involves another area, and crushing itself involves yet another area. Trying to limit what takes place where creates the problem of telling Levi how to run his business.
Isaac said there is a small parcel located just west of Moyie Springs that is a fenced confined area representing a junkyard. It seems possible to confine the operation in a similar way although that area, too, is not screened from view. He said he doesn't know what to do about that but the problem of screening is not just at Falk's junkyard.
Davis asked for more opinions on this. He said if we approve that location we would have to approve all locations, and if we deny that location we would have to deny all locations for the same reason, whichever way we decide. We would have to come to a decision as to why we would approve a single parcel and then come to the same reasoned conclusion for denying other parcels. Woywod asked if we could approve a specific parsel and Davis said we would have to require partitioning off the boundary of the parcel and this becomes problematic based on the business application crossing parcel boundaries. Heenan noted this is actually foue different applications so each could be decided upon separately. Counselor Hull said that the applications were made as an effort to view the parcels over the coming years as a single entity thereby enabling one set of conditions that would apply to all of the parcels. Heenan agreed saying he thought the applicant was describing his business needs. Davis then asked whether there was a need to consider the separation of the parcels one from another and deal with them separately. Purdom had no input when asked at this point, and so Davis listed the Conditions in Section 7.7. that needed to be addressed. He said that Section 10.5.3. regarding general provisions for junkyards need to be considered, as well as benefits and/or possible harm to the community. Referring to Section 7.7.7. which asks "whether specific concerns aired through the public hearing process have validity and whether those concerns can be adequately addressed", this must be discussed here.
Davis continued, saying there were expressed concerns about property value from an immediate neighbor, plus the impact on property values in the general surrounding area, plus aesthetics, which is an issue. The appearance, and means of screening or fencing or any combination of this, presents a question of aesthetics. Woywod interjected that this area is zoned so as to accommodate junkyards, so overall how do you hide something that specifically is allowed in this zone? You have to figure out a way to work, to make it so it can come into compliance, or you can never make it come into compliance. The road is higher than the property, so you can never 'hide' what is in plain sight. Heenan asked how we could do this, make what is in plain sight taken from plain sight? How would you create a screening so that the folks who are opposed to seeing this would be satisfied?
Woywod said right, how do you screen the obvious? Davis said he would read Section 10.5.3.1. again:
All junkyards will be screened, either by opaque fencing, natural topography or vegetation sufficient to block the use from view from any adjacent property or public right of way and to prevent trespassing. When fencing is used, such fencing will not exceed twelve (12) feet in height. No scrap or junk materials will be stacked, stored or piled to a height exceeding the height of the fence.
Davis said again - block the use from view from any adjacent property or public right of way. That is what we need to consider. Woywod - "or public right of way", there you go, so how do we propose to do this? I don't think it can be done. Davis responded by asking if Rob was saying the topography of the land prevented screening or fencing the area adequately? Woywod said "Not to the letter. I think we can get it close but is that close enough for the community to accept?"
Heenan said that if we propose something high enough to block the area out, we've already discussed trees and the problem with blue spruce, how would we, could we gain height enough to screen effectively with another type of tree? Woywod said we could get close but not close enough for the people concerned to be happy. Isaac said that when the cars are crushed the area would become clear again, and a screen of fencing or trees would not seem to be unreasonable. Davis said right, but the cars will keep coming back unless we limit the number of cars before requiring crushing again. I think we can allow for limiting the number of vehicles, fencing, things of that nature if you think it can be done in accordance with the code.
Davis said he thought this could be decided right here, that if the application can be approved and then what conditions might be required. Isaac said this is why he thought by limiting the amount of vehicles we wouldn't be having to deal with this issue in the future, especially if we can limit the placement of those vehicles behind whatever screen seems appropriate. It might be feasible to limit the number of cars and, if necessary, stack them behind the screen but keep that location away from the highway. Keep the location for storing these vehicles small and more to the rear of the property. Davis asked if Isaac was going back to wanting the location on the eastern-most parcel and Isaac said he had in mind behind the buildings, the parts shop and the repair shop, using the buildings to serve as the screen, but keeping the area small, just a few cars.
Davis asked if the number of cars, or the placement of them, was the concern? Isaac said that at one time this wasn't a big issue, but if those cars are eliminated or greatly reduced to what they once were it would make cleanup a lot easier. By putting the cars behind the buildings you wouldn't even see them and it would make aesthetics a lot easier to deal with. He continued, if they were behind the two buildings there would be no aesthetics issue.
Davis asked
Heenan asked if there is a required setback to be suggested, and Purdom said this has nothing to do with property lines. Cranor said he viewed the rear of th buildings as the most forward location for placing vehicles, and Heenan said there are a lot of things going on here to be considered. Where to place the cars, where to place the fence, and there are locations to get ready for crushing... Cranor interrupted to say he doesn't think we can decide on where crushing is to happen or any of the work that needs to be done, but generally keep the derelicts away from the front of the properties. He said that Levi should be able to use the property as he sees fit but that he should make an effort to reduce the ugliness of it, but he thought the conditions should specify keeping the front clear because he doesn't think Levi would do this on his own. What's behind the buildings, that's on his property and we don't have the right to say how he uses that land, said Cranor. Purdom completed the thought by saying "as long as it complies with the provisions for a junkyard" and everyone nodded approval to this thought.
Davis said, going back to his original question does this board think we could initially approve the applications but with conditions which we would stipulate, or deny the applications based on face value or simply deny it? Cranor said that he was of the opinion that things won't go away and there won't be a positive outcome. Davis asked if Cranor thought the outcome of approval would benefit the community more than a denial would harm the community? Cranor said that denying it doesn't make it go away; the entire operation won't just disappear if we deny it. Davis said the reason why we are here today is to determine if we are going to approve this permit. The outcome is not apparent to me at this point. The question is are we going to deny it and if we do, what are those grounds? Cranor said we don't have much grounds to deny it, in addition to what considerations can we impose to make it a success?
Davis said he thought we could potentially deny it based on considerations. He said he understood the zone permits junkyards but the location is a problem even if the zone is correct because the code does say the use has to be blocked from view. He continued by saying that is the only argument he can see that would deny the application. Heenan asked Davis for his 'benefit' argument, how would approving the application benefit the community? Davis said he could go either way, saying the application provides a benefit or a nuisance to the community.
Woywod said he hates to say it but it looks more like a nuisance than a benefit. How many people actually go there to do business? He thinks most of the business is done online and the local community has to put up with the appearance. Caleb said that Section 7.7.8. asks whether the use proposed would constitute a public nuisance or infringe on the property rights of surrounding property owners. Just because it is in a zone that permits a junkyard is not enough, because if it were not zoned for a junkyard we wouldn't have any question here but it is up to us to determine if the use is acceptable, if the location within that zone is a public nuisance or would impose adverse impact on surrounding property owners. So I am asking the board if we can allow this junkyard by imposing stringent terms and conditions to mitigate the impact or simply deny it because of its location and topography. Purdum stated that Section 7.7.3. asks whether there is sufficient land area to accommodate the use proposed, and that is why you're asking if there can be conditions opposed. Yes, Davis answered, exactly. So if the negative effects cannot be mitigated, and one of those is the aesthetics, then we have grounds to deny the applications. But if the negative effects can be mitigated then we have grounds for approval.
Heenan suggested that if there were a berm to be placed one or two hundred feet back from the road, with trees planteed on it so no one could see behind it, this would provide an adequate screen. Out of sight out of mind is how this would appear to the world passing by on the road, and if placed appropriately the same solution would block the neighbor's view. We don't know how placing the berm or planing twelve foot high trees would look in a few years, depending on how fast the trees grow exactly, but if they grow a foot or so a year it wouldn't take long for the screen to be effective. I think if we eliminate the cars up front that would be a quick remedy. Davis said he agrees, that would be a fast start to improving the situation. Heenan continued, but the concept of the berm in conjunction with the trees may or may not be helpful. He asked "What do we do with the cars if we don't have this location available?" Someone replied that they wind up as individual eyesores on people's property and someone else said the limit to that is 3 and Heenan continued that if you have 3 here and 3 there and pretty soon you have other issues of enforcement In the old days, when we had mining towns and rough living there was no issue with having junk in your yard but nowadays where are you going to place those old cars? And if we leave them standing, even in a junkyard, pretty soon you have to crush them and haul them away, maybe a couple of hundred miles south. So there is need in the community but if there is some way to make it so its not an eyesore we should do that so we can mitigate the condition.
Davis then asked how would you do that, what can you suggest that would remove the eyesore and nuisance to the community? We brought up three suggestions, fencing, berms (with trees), and perhaps more trees placed strategically. What do you propose? Heenan replied that maybe the berms are problematic since the view down from the highway may not make this a practical suggestion; the berms would have to be pretty high to create a wall big enough to screen the cars, and there may be a question of driving and easement on the parcels that would make it difficult if not impossible to use berms as a screening tool. We're looking to create a situation where someone coming to view the property can say OK, I can put my delicatessen next door, or whatever, because I can't see that junkyard next door. If you can't hear anything or see anything or smell anything (OK, maybe smell isn't an issue) then the design chosen mitigates the concern. Woywod said that we should consider the view from all angles, not just the road. There is the neighbor to the north and the property to the south to consider, as well maybe as the airport just to the east. Viewing is viewing and to not see the cars seems like a pretty tall order.
Purdom stated that we seem to be at the point where we want to grant approval but with mitigating factors. So we can either approve it with mitigating circumstances or deny it. Is this a good summary of where we are? Woywod said yes, if we come up with mitigation that takes care of the considerations regarding being able to screen or block the view the cars.
Heenan said we're not just talking about Mr. Falck, we're talking about conditions that would apply to anyone trying to establish or maintain an existing junkyard. We're not high on jobs but we're high on ugliness up here right now and it's not pretty so if we can take care of these circumstances we're better off. We really don't have a good reason to deny, in my opinion, if we can find a way to screen the ugly cars from view.
Cranor said whoa, we do have the ability to mitigate and approve if we can see a good mitigation strategy. Why don't we let the applicant suggest what he thinks would satisfy this requirement? Heenan said we don't want to devalue property nor do we want to establish unreasonable proposals that the applicant cannot comply with. Isaac suggested that whatever mitigation procedures are proposed, there should never be derelict, inoperable vehicles in front of the buildings. Davis concurred, saying that one stipulation would be no derelicts on the front of the property. Isaac said I'm not talking about good vehicles coming in for repair or to do business or to be parked in front while doing business. I'm talking about derelict cars, maybe even those which are in the process of temporary storage like abandoned vehicles; these should never be out front. I don't know the business well enough to know what types of vehicles are involved, like Levi's service vehicles for towing or abandoned vehicles, waiting for an owner or police decision for how to dispatch an abandoned vehicle; I'm just saying that the majority of what I'm describing I don't think should be out front for everyone to see.
Davis said I can agree with that. Heenan said there are some companies which maintain that when a vehicle is 'totaled' it must be out of sight. I don't know if that definition applies here, that may be an insurance company term but it might be useful in this case. Of course if body work is called for that's the function of the body work repair shop but still, if the vehicle is not operable it should not be parked out in front.
Cranor interrupted to say that he had to leave in ten minutes. If a vote was taken, John said, the Commission knew pretty much what his feelings were and in addition he agreed with Rob Woywod's position. He said if you're taking a vote, you know pretty much where I stand. Davis said he agreed and acknowledged Cranor's position, and that we still have a quorum.
Counselor Hull commented that Section 7.9.3. allowed for the applicant to obtain documentation to provide specific information on points that prevent the commission from continuing. Davis read this Section aloud, explaining the procedure for tabling the hearing (again). MarciaVee Cossette said she would like to give Levi an opportunity to show he can do what is expected of him, to take responsibility for the appearance of his business. She said he should be given the opportunity to create an appearance that if not pleasing would not be so darn ugly. Cranor asked what would happen if the hearing is tabled concerning public comment? Davis replied that it could be open but there is no need to do so and at this point it would be simply open for board discussion. Heenan said that this would provide the applicant time to gather material to answer questions that relate to the mitigation being considered. Davis said that's right.Heenan said we should provide the applicant with a list of the areas we are considering and give the applicant an opportunity to respond to each of the items on the list.
Davis pointed out that the first consideration asks whether the applicant has provided a site plan and additional documentation to describe his business. It is apparent now that we need additional documentation in order to proceed.
Davis stated that we can table the hearing and not only should we specify additional information we need from the applicant but make it clear that there are no 'hidden' items, nothing in addition to the list of items presented here that would be added later. Wade Purdom summarized the items which Falck must address:
Falck interrupted saying that all of these questions are answered in the site plan, all of them. Staff said the site plan can be scrutinized to ensure everything is answered, but the basic question of screening still requires a closer look for a solution.
Chairman Davis expressed concern that the issues remaining unanswered should be considered by the applicant, and that there was obvious research time needed by the applicant to address each of these. He said the applicant has presented a site plan, but that it would be more effective if the site plan were to be referenced by the applicant as it explains the concerns raised by the Commission.
Following the explanation that tabling the hearing would give the applicant Levi Falck time to prepare a response to the concerns raised by the Commission, Chairman Davis asked the Commission if there was anyone wishing to make a motion and Woywod moved to table the hearing until the next regular meeting scheduled for May 17, 2018. The motion was seconded by Co-Chair Purdom, and there being no further discussion Davis called for a vote. The votes were as follows:
John Cranor - Aye, Tim Heenan - Aye, Scott Fuller - Absent, Marciavee Cossette - Aye, Wade Purdom - Aye, Adam Isaac - Aye, Rob Woywod - Aye, Ron Self- Absent, Caleb Davis - Aye
Tally: Nay (0), Recused (0), Aye (7), Absent (2)
The motion to table the hearing until the next regular meeting scheduled for May 17, 2018 was unanimous.
Chairman Davis then apologized to all present for the inconvenience of having to return to hear the outcome of the deliberations. He thanked them for their participation, and welcomed their return on May 17th. The public left the courthouse.
Chairman Davis then asked staff where things stand and what steps are needed to amend the Comprehensive Plan and Comprehensive Plan Map. Staff responded by saying that approval of the 2008 Comprehensive Plan and Comprehensive Plan Map to be retained as the 2018 version is complete. He said that the renaming of the Ordinance, Zone map and three other documents (Fees, Airport Overlay and Flood Plan Overlay must still be presented to the public in a County Commissioners public hearing, said hearing and subsequent Resolutions to adopt the renaming of these will be scheduled for some time in May of this year.
Staff suggested that when reviewing the Comp Plan Map it is important to have the public involved in any rezoning changes proposed. He said that he would prepare public notice of pending rezoning considerations, and Cranor said that if they were told it was THEIR parcel that was up for rezoning the room would be packed to capacity. Staff said that was the point, but that the announcement would not be so dire. He said the public needs to see that a prime consideration in making any zone change is the availability of water, electricity, sewer/septic conditions approved by Panhandle Health, and available infrastructure to ensure all-weather access to property.
Wade Purdom moved to adjourn, MarciaVee Cossette seconded, approved unanimously at 7:00 pm.
Transcribed by: John B. Moss