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County commission minutes, November 5-6

November 19, 2012
***Monday, November 05, 2012, Commissioners met in regular session with Chairman Ron Smith, Commissioner Dan Dinning, Commissioner Walt Kirby, and Deputy Clerk Michelle Rohrwasser.

Blue Sky Broadcasting Reporter Mike Brown was in attendance of the meetings throughout the day.

Solid Waste Superintendent Claine Skeen and Sharlene Delaney with Boundary Abstract joined the meeting. Chairman Smith updated Commissioners on the matter involving the request made by the State of Idaho for an easement on property near the landfill. Ms. Delaney said Steve Moyer with North Star Surveying has located a stake for the corner. The easement will be 558 feet, which is where the stake is located and this is well past 150 feet from where the gas monitoring well sits. The well is on a knoll and the easement is on a flat, according to Ms. Delaney.

9:00 a.m., Road and Bridge Superintendent Jeff Gutshall joined the meeting to provide a department report.

Chairman Smith said the state needs a way to get to their property and this is a way to get back to those properties. Chairman Smith briefly mentioned property owner Roger Miller possibly developing his property. Ms. Delaney said the easement needs to be 60-feet wide and the state doesn’t want to have limited access as they want to have an all inclusive easement. Ms. Delaney said the state is not building a county road.

Chairman Smith asked how to make sure Mr. Miller has access listed on the final document, and Ms. Delaney explained there will be a separate easement deed from Mr. Miller to the state. Chairman Smith said the only involvement with Mr. Gutshall is where the state’s easement comes off the county road. It was said the easement could take off from the boundary line so it is almost a straight shot from the county road in front of the landfill.

Mr. Gutshall asked if there had been any discussion about a trade for an easement on Smith Lake Road. Commissioner Dinning questioned if the property near the landfill is state endowment land. Mr. Gutshall explained that Road and Bridge is maintaining the road as far as the Smith Lake Road. Ms. Delaney said her contact person with the State of Idaho is Eric Besaw.

Ms. Delaney asked if the county will order the appraisal. Commissioner Dinning asked if the county will be reimbursed for the appraisal and Ms. Delaney said yes.

Ms. Delaney and Mr. Skeen left the meeting at 9:15 am.

Mr. Gutshall provided a written report and informed Commissioners that Road and Bridge is working to finish up the Paradise Valley Hill work. Mike Klaus with the Cabinet Mountain Water District was also in the Paradise Valley area to look at the issue of water under the road at the junction of Blue Sky Road and Shamrock Road, according to Mr. Gutshall.

Mr. Gutshall mentioned getting rock work and culvert projects done. Road and Bridge has hauled rock and did some grading on Mallard Road and other than that Road and Bridge is catching up on grading and patching. Mr. Gutshall mentioned looking at the rock for the clinic near the Hospital and the parking area for the Restorium storage shed, and said that would probably happen next week.

Commissioner Dinning mentioned being prepared for winter and Mr. Gutshall said he will probably have three sandboxes sitting in trucks by the end of this week. Mr. Gutshall informed Commissioners how long it takes to load plows and sandboxes onto trucks.

The meeting with Mr. Gutshall ended at 9:30 a.m.

Commissioner Dinning moved to accept the ambulance unit donated by Bonner County. Commissioner Kirby second. Motion passed unanimously.

Commissioners tended to administrative duties.

Commissioner Dinning moved to approve the minutes of October 29 & 30, 2012. Commissioner Kirby second. Motion passed unanimously.

9:45 a.m., Treasurer Jenny Fessler joined the meeting.

Commissioner Dinning moved to cancel 2012 year taxes totaling $239.92 for parcel #RP63N01E293740A as the homesite should have been removed previously. Commissioner Kirby second. Motion passed unanimously.

Commissioner Dinning moved to cancel 2012 year taxes totaling $80 and fees totaling $75.74 for parcel #MH64N02E030800A as the Royal Dutchmen 5th wheel was licensed for 2012 so it cannot be assessed. Commissioner Kirby second. Motion passed unanimously.

Commissioner Dinning moved to cancel 2012 year taxes totaling $53.24 and fees totaling $131.48 for parcel #MH62N01E15916AA as the mobile home has been demolished. Commissioner Kirby second. Motion passed unanimously.

9:46 a.m., Treasurer Fessler left the meeting.

Commissioner Dinning moved to adopt Resolution #2013-7. A resolution to increase current expense budget due to receipt of unanticipated funds. Commissioner Kirby second. Motion passed unanimously. Resolution #2013-7 reads as follows:



WHEREAS, the Board of County Commissioners, County of Boundary, State of Idaho, did establish an operating budget for the Current Expense Fund for fiscal year 2012-2013, and

WHEREAS, $721.50 has been received from Patrick and Ada Gardiner as payment for a transcript of a Planning & Zoning hearing; and

WHEREAS, the Current Expense Fund for fiscal year 2012-2013 is in need of this additional revenue to pay to have the transcript done; and

WHEREAS, the addition of this revenue does not affect the tax levy for Boundary County; and

WHEREAS, it is appropriate to increase the Current Expense Fund Revenue Account Number 01-00-391-04 in the amount of $721.50 and the Current Expense Clerk/Auditor Expense Account Number 01-01-402-00, Salaries – Deputies, in the amount of $721.50.

NOW THEREFORE, upon motion duly made, seconded and unanimously carried,

IT IS RESOLVED that the increase in the Current Expense Fund Revenue Account Number 01-00-391-04 in the amount of $721.50 and the Current Expense Clerk/Auditor Expense Account Number 01-01-402-00, Salaries – Deputies, in the amount of $721.50 is hereby authorized and ordered; and

IT IS FURTHER RESOLVED that the Clerk is instructed to deliver certified copies of this resolution to the Boundary County Treasurer and the Boundary County Auditor.

DATED this 5th day of November, 2012

DAN R. DINNING, Commissioner
WALT KIRBY, Commissioner
GLENDA POSTON, Clerk of the Board of County Commissioners
Recorded as instrument #255584

10:00 a.m., Kootenai Tribe of Idaho Council Chair Jennifer Porter, Kootenai Tribe of Idaho Facilitator Patty Perry and Bonners Ferry City Council member Tom Mayo joined the meeting.

The purpose of the meeting is to discuss the Kootenai Tribe’s request to place specific parcels of their land into Tribal trust. The two properties in question are the Twin Rivers property and a parcel near the Kootenai River Inn.

Mr. Mayo asked why lots 1 and 2 of one of the properties were not included and Ms. Perry and Council Chair Porter said they did not have figures on that to date. Mr. Mayo briefly reviewed paperwork with Ms. Porter and Ms. Perry as to what parcels are already included in trust and which are not. Mr. Mayo said there is no issue, but he thought something might have been overlooked.

The meeting with Ms. Perry, Tribal Council Chair Porter and Mr. Mayo ended at 10:10 a.m.
Commissioners tended to administrative duties.

10:30 a.m., Commissioners addressed the proposed rental agreement with Pape′ Machinery for snow removal equipment for airport use. Also addressed was the Bill of Sale and Assignment of Ground Lease for Hangar B-1 at the Boundary County Airport.

Commissioner Dinning moved to sign the Bill of Sale and Agreement of Ground Lease for Hangar B-1 between Bill Heupel (assignor) and Dave and Kimberly Parker (assignee). Commissioner Kirby second. Motion passed unanimously.

Commissioner Kirby moved to sign the agreement with Pape′ Machinery for rental of snow removal equipment to be used by the Boundary County Airport. Commissioner Dinning second. Motion passed unanimously.

Commissioners tended to administrative duties.

11:10 a.m., There being no further discussion, the meeting recessed until tomorrow at 9:00 a.m.

***Tuesday, November 6, 2012, Commissioners met in regular session with Chairman Ron Smith, Commissioner Dan Dinning, Commissioner Walt Kirby and Deputy Clerk Michelle Rohrwasser.

9:00 a.m., Solid Waste Superintendent Claine Skeen joined the meeting to give the departmental report.

Commissioners informed Mr. Skeen that someone had once stopped by the office to suggest the idea of having a permanent take it or leave it area at the landfill. Commissioners and Mr. Skeen said they felt having this service posed a potential liability.

The meeting with Mr. Skeen ended at 9:15 a.m.

Commissioners tended to administrative duties.

10:00 a.m., Chief Probation Officer Stacy Brown joined the meeting to provide a department report.

Ms. Brown provided Commissioners with the 2011 and 2012 comparison for the County’s Annual Juvenile Justice to the Idaho Department of Juvenile Corrections. The number of juveniles placed into diversion programs is a positive one, according to Ms. Brown. Ms. Brown mentioned the number of recidivism that has taken place by adults whose original offenses occurred when they were juveniles. Ms. Brown said number of community service hours total 1,678 for this reporting period versus 448 hours for last year.

Ms. Brown said drug testing is down as there are more burglaries this time. There are 43 juveniles on probation and four are committed, which is a high number. There are 65 adults on misdemeanor probation, 11 juveniles on the Youth Accountability Board (YAB) with six new kids coming on board.

Ms. Brown informed Commissioners she is leaving for Boise to attend the Idaho Juvenile Justice Association (IJJA) meeting and to score grants.

Commissioner Dinning moved to approve the 2011-2012 comparison for the County Annual Juvenile Justice Report to the Idaho Department of Juvenile Corrections as provided by the Boundary County Probation Department. Commissioner Kirby second. Motion passed unanimously.

The meeting with Ms. Brown at 10:15 a.m.

Commissioner Dinning moved to sign the Independent Contractor Agreement with Fulton Quality Construction for repairs to be made to the snowmobile warming shelter and comfort station upon receipt of the certificate of liability insurance and specifications. Commissioner Kirby second. Motion passed unanimously.

Commissioners tended to administrative duties.

10:25 a.m., Commissioner Dinning left the meeting due to having a conflict of interest for the next meeting to discuss the process of Takings Analysis scheduled for 10:30 a.m.

10:30 a.m., Planning and Zoning Administrator Dan Studer joined the meeting. Attorney Phil Robinson was also present via telephone.

Those present questioned the process for a request of regulatory takings analysis. Mr. Studer and the county’s attorney have both been provided with a copy of the Request for Regulatory Takings Analysis. Chairman Smith asked if there is a deadline in which a response to the analysis is due and is there a process to go through to complete the analysis. Mr. Studer said there is a time limit of 42 days listed in Idaho Code and a response is typed up as it relates to a question sheet. In 2006 a Request for Regulatory Takings Analysis had been filed in regards to this same issue and former Planning and Zoning Administrator Mike Weland responded on behalf of Commissioners. Mr. Studer said he has drafted a response for the Planning and Zoning Commission, who was the deciding body on the application of the public hearing. Mr. Studer said he understood this can be done internally under executive session to review the information. Mr. Studer questioned if Planning and Zoning Chairman Matt Cossalman would have to come in and verify the discussion because the deciding body was the Planning and Zoning Commission.

Mr. Studer said has he reviewed the report previously written by Mr. Weland.

County resident Ken Lustig joined the meeting at 10:48 a.m.

The meeting to discuss the request for Regulatory Takings Analysis ended at 10:50 a.m.

10:55 a.m., Commissioner Dan Dinning returned to the meeting.

11:00 a.m., Ken Lustig met with Commissioners to discuss Commissioners’ decision on Planning and Zoning Application #12-006 to rezone certain lots and parcels along the Moyie River from ag/forestry to suburban. Also present was Planning and Zoning Administrator Dan Studer.

Chairman Smith briefly reviewed the discussions of the prior public hearings on this application. Chairman Smith said during one of the previous hearings Commissioner Dinning wanted to approve only one of the sections of the application, but during this final public hearing Commissioner Kirby moved to incorporate more areas.

Mr. Lustig said he doesn’t believe there was any definitive response to those reports to answer his questions and he was disappointed in the Commissioners’ decision. Chairman Smith said Commissioners did answer the question because they provided the information from Planning and Zoning and the county attorney as to the status of Earl Lane/Moyie Road. Commissioners did adopt the opinion of the attorney, according to Chairman Smith.

Mr. Lustig provided Commissioners with letter on behalf of the Lustigs and the Duncans of Earl Lane Road along with a list of specific questions to answer and he read portions of his letter aloud, but they are not typed here verbatim.

Mr. Lustig said Commissioners’ decision provided no explanations for questions and opposition posed in the earlier hearings, nor did it address any of the short fall concerns expressed by the fire chief and the overwhelming opposition of the Earl Lane Moyie residents. At the previous hearing in September, there was not a single voice to support the suburban zone change south of section 15, 384 Earl Lane Road. A lack of specific justifying answers or reasons for ignoring the Planning and Zoning Commission; ignoring the Hall Mountain Fire Chief concerning proven evidence of inadequate road access; ignoring the failure of the county to exhibit any appropriate maintenance or construction of its deeded right-of-way beyond the section 15 corner, the non-existing stipulation of any overt design criteria for an all weather road, and the lack of any standards or conditions for awarding future variances or waivers for road construction. None of these serious concerns have been responded to either in public record or in writing or even in discussion.

Mr. Lustig said Commissioners told him they would inform him of what they would adopt. Chairman Smith said Commissioners did adopt opinions during this last public hearing. Mr. Lustig said he’s not trying to be adversarial; he’s just trying to have some questions answered.

Mr. Lustig continued reading from his written comments and said there is nothing in a definitive way that allows the opposing taxpayer constituency to understand the logic employed by the commission. Mr. Lustig said his professional experience of over 30 years of managing hearings always required a Finding of Facts and Conclusions of Law as a salient basis for decision. That allows an administrative closure so opponents can formulate a decision as to whether they want to proceed with an appeal. There is no mirror to Commissioners’ logic to examine, according to Mr. Lustig. Mr. Lustig said he is on record asking several questions and requesting specific answers so he can concur or disagree with Commissioners’ logic pattern or a commission failure to acknowledge and incorporate citizen concerns.

Commissioner Dinning said the portion of road of concern is a county road and that is why it is mapped, but a section of it is not maintained. Mr. Lustig said he contacted the Road and Bridge Office to find estimated projected costs to construct this road since Chairman Smith said he was trying to keep costs down. Chairman Smith and Mr. Lustig debated whether or not Chairman Smith mentioned the statement of trying to keep costs down in relation to leaving the road in question as is.

Mr. Lustig said he put together a project cost estimate to show Commissioners that it would cost 1/100th of 1% of the total Road and Bridge budget to operate, maintain, construct, and repair the 1/3 stretch of county right-of-way that is the issue.

Mr. Lustig’s letter states we can’t imagine any argument supporting a savings cost of 1/100th of 1% as being a substantial justification for depriving citizens who were invited by permit to live on a county right-of-way basic safety services that insure, fire, emergency and police protection not to mention all weather access.

Mr. Lustig asked if the county would entertain the idea of a ten foot section of Earl Lane Road beyond Section 15, marker 384 for constituents, if Commissioners are not otherwise going to maintain it. Mr. Lustig provided a list of justifications for maintenance.

Mr. Lustig’s letter states his disappointment in Commissioners’ decision and he requested to be informed of the logic so as to be convinced that Commissioners are simply not prejudiced against those in favor of supporting development. Mr. Lustig said Elaine Duncan who is a lawyer, would like to know what Commissioners’ legal basis is.

One question Mr. Lustig had is since the existing “this road is not a road” legal opinion embraced by Commissioners doesn’t warrant plowing and maintenance for eight houses, how could it possibly satisfy the Suburban requirement of permitting additional more dense development and meeting county road standards? Given that road standards can be waived with additional development permitted by the Commission’s recent decision, how can the Commission in good faith encourage further development on a road that is already raising public concerns? To do this indicates an inclination to award a waiver as listed in Planning and Zoning Administrator Dan Studer’s memo (10/17/12 2B) to the suburban road standards before any proposal has been submitted. The existing road is only 25 feet wide and is insufficient to comply with the Boundary County Road Standard Manual or even to be expanded without eminent domain. This is not fair and equitable and smacks of favoritism, according to Mr. Lustig’s and the Duncan’s letter. In addition, the waiver granting has no standards of award or conditions to be adhered to. It provides no guarantee of meeting the intent of the Suburban Zone which is high density requiring adequate infrastructure.

The existing access is non-conforming and cannot conform without a taking of property, so it fails to meet the fundamental access requirement. For the county to award Suburban density implies the county intends to raise the road to meet standards or to give blank waivers and it was asked if this undermines the argument that the county won’t service the existing right-of-way so as to keep costs down.

Mr. Lustig’s letter states there is a simple possibility of a minimum of 22 lots south of section 15 that can be split using the four lots logic in the October 29th staff report. If the County Ordinance considers subdivision of greater than four lots as requiring roads up to the county standard, how can one justify 22 lots eventually being sanctioned without adequate roads as required by the Ordinance?

The suburban designation has encouraged growth in an area with a non-maintained county road that can’t withstand this growth. This right-of-way is only 25 feet wide and either has to be expanded or grant a waiver.

Mr. Lustig said the four parcel split was never intended to be used for public development; just for the farmer to split for his kids. In the Lustigs’ and Duncan’s’ letter many suggestions were provided for Commissioners to consider.

Mr. Lustig said Richard Villelli owns all land adjacent to the right-of-way and he could’ve with good planning, reserved 35 feet to meet the requirements of a county road. If Commissioners provide developers with a waiver, they’re supporting the developer’s poor business practices, etc. The short coming is Mr. Villelli’s doing; not the nature of the site, according to Mr. Lustig.

Chairman Smith said he had tried to explain during the second hearing that he wanted to address what this right-of-way was considered. Chairman Smith said because of deed, this right-of-way is not a maintained county road and this was also backed up by a legal opinion. Mr. Lustig said he’s not an idiot and he has read the opinion. Mr. Lustig said if Commissioners are designating this area as suburban, how will the county meet its own standards?

Commissioner Dinning said any development of four lots or less, a developer has to come to the county for approval and this Board of Commissioners has an obligation to look at every issue Mr. Lustig raised. Just because a waiver is allowed doesn’t make it automatically given as the developer or applicant will have to go through the Planning and Zoning Commission and the Board of Commissioners, and that is where the issue of trust is. The specific issues raised today would be addressed at that time, according to Commissioner Dinning. Commissioner Dinning said those are things that would occur during the processes. Mr. Lustig said there are no standards for issuing that.

Mr. Lustig said he ran into a Planning and Zoning member who smiled at him and told him he was being naive about Commissioners. Mr. Lustig said Commissioner Kirby was quoted during the last public hearing as saying this designation is what Commissioners have wanted all along. Mr. Lustig mentioned the feeling of Commissioners having a hidden agenda or not being candid when people feel they have not been heard.

Mr. Lustig said this is the county’s right-of-way and he technically can’t do anything on it. Mr. Lustig said he’s afraid the county will ultimately make him contribute towards costs to improve the right-of-way and he and the neighbors won’t get anything out of this. Mr. Villelli should have taken care of this issue when he owned the land, according to Mr. Lustig.

Commissioner Dinning said Mr. Lustig is making the assumption this development is going to occur. Commissioner Kirby said if a developer wants to build a high density area, he is responsible for buying the road. Mr. Lustig said he doesn’t want the road. The people in this area who are opposed to Commissioners’ decision are so angry that they’ve hired an attorney.

Chairman Smith explained to Mr. Lustig that the county does not levy for Road and Bridge. Mr. questioned how Road and Bridge is funded and Chairman Smith referred to the Secure Rural Schools Funds.

Chairman Smith said he felt the questions about this right-of-way were answered. The questions had been what happens as far as road requirements if someone wanted to build. Mr. Lustig asked if there are some assurance for maintenance and improvements. Mr. Lustig asked if the county would entertain selling the road to someone and Commissioner Dinning said the county cannot sell roads.

Mr. Lustig said he’s learned not to participate in any further county activities and he mentioned the time he’s put into developing the new Comprehensive Plan.

The meeting with Mr. Lustig ended at 11:40 a.m.

There being no further business, the meeting adjourned at 11:50 a.m.



By: Michelle Rohrwasser, Deputy

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