Minutes for 2009-09-08, Direct pdf link.
MINUTES
OF THE BOARD OF COMMISSIONERS OF WEBER COUNTY
Tuesday, September 8, 2009 - 10:00 a.m.
Weber Center, Ogden, Utah
In accordance with the requirements of Utah Code Annotated Section 52-4-7(1)(d), the County Clerk records in the minutes the names of all citizens who appear and speak at a County Commission meeting and the substance “in brief” of their comments. Such statements may include opinion or purported facts. The County does not verify the accuracy or truth of any statement but includes it as part of the record pursuant to state law.Commissioners Present: Craig L. Dearden, Chair, Jan M. Zogmaister and Kenneth A. Bischoff.
Others Present: Alan D. McEwan, Clerk/Auditor; David C. Wilson, Deputy County Attorney; Fátima Fernelius, Clerk/Auditor’s Office, took minutes.
A. Welcome - Chair Dearden
B. Pledge of Allegiance - Jennifer Graham
C. Thought of the Day - Commissioner Bischoff
D. Presentation of a Proclamation designating September 17- 23, 2009 as Constitution Week
Chair Dearden read the proclamation, which was presented to Douglas McGregor and Eric Richhart (Utah Society of the Sons of American Revolution).
E. Consent Items:
1. Purchase Orders in the amount of $245,154.94
2. Ratify Warrants #253641 - # 253979 in the amount of $852,325.74 dated September 1, 2009
3. Warrants #253980 - #254154 in the amount of $1,765,916.28 dated September 8, 2009
4. Minutes for the meeting held on August 25, 2009
5. Approve the sale of Parcel/LSN 11-027-0017 and authorize the Chair to execute the Real Estate Purchase and Sale Agreement along with a Quit Claim Deed - Contract C2009-147.1
Commissioner Bischoff moved to approve the consent items; Commissioner Zogmaister seconded, all voting aye.
F. Action Items:
1. Resolution of the Commissioners of Weber County appointing members to the RAMP Committee for three year terms to be effective 10/01/09, also appointing board chairs and a transfer of one member to the Advisory Board - Resolution 28-2009
Seshachari Candadai, RAMP Chair, presented recommendations for appointments.
Commissioner Zogmaister moved to adopt Resolution 28-2009 appointing the following: Margaret Naisbitt and Kathy Davis to serve on the Cultural Committee, and Sam Lower as Chair of the Cultural Committee; Joe Hull and Mark Bunker to serve on the Recreation and Parks Committee, and Stephanie Christiansen as Chair of the Recreation and Parks Committee; Sandy Crosland shall continue her service on the Recreation Committee but also serve as a representative on the Advisory Board; and Morris Sterrett shall continue his service on the Arts and Museums Committee–all effective 10/1/2009 through 9/30/2012; Commissioner Bischoff seconded.
Roll Call Vote:
Commissioner Zogmaister aye
Commissioner Bischoff aye
Chair Dearden aye
2. Contract with GOAL Foundation to help facilitate the growth of the Ogden Marathon, Xterra National Championships, Mountain to Metro and Harvest Moon Festival, Dew Action Sports Tour and World Archery Events - Contract C2009-147
Mike Caldwell, County Public Information Officer, stated that these events have positive economical impact on the community.
Commissioner Bischoff moved to approve Contract C2009-147 with Ogden Marathon, Xterra National Championships, Mountain to Metro and Harvest Moon Festival, Dew Action Sports Tour and World Archery Events; Commissioner Zogmaister seconded, all voting aye.
3. Contract with the U.S. Forest Service for modification to current contract to increase the radio allowance and patrol allowance - Contract C2009-148
Weber County Sheriff Brad Slater stated that this modification increases the patrol reimbursement amount by $1,289.77 and equipment purchase amount between $3,000-$5000. The radio equipment becomes property of the County but will be issued to a Forest Service law enforcement officer.
Commissioner Zogmaister moved to approve Contract C2009-148 with the U.S. Forest Service for modification to the current contract to increase the radio and patrol allowances; Commissioner Bischoff seconded, all voting aye.
4. Approve the appointment of the Indigent Defense Coordinator for Weber County
The county is adopting a new model for defense of the indigent charged with crimes. Brad Dee, County Human Resources Director, noted that this signified a great step forward in the Commission’s decision to move in a different direction for the defense of the indigent. The commissioners determined that the county would contract with an indigent defense coordinator who will work with individual contracts of several attorneys to provide for these services effective 1/1/2010. The coordinator will assist in the planning and transition to the new model and aid in the selection of the private attorneys.
The county advertised for the position and received 13 applications and five met the minimum qualifications. The committee selected Michael Bouwhuis. The commissioners said that it had been a long process, that the county was making positive progress in changing defense of the indigent, and thanked everyone involved.
Commissioner Bischoff moved to move forward with preparation of the contract with Michael Bouwhuis as the Indigent Defense Coordinator; Commissioner Zogmaister seconded, all voting aye.
5. Consideration of impact fee adjustment at Wolf Mountain
Curtis Christensen, County Engineer, stated that his office recently received plans for a building to be placed in the parking lot of the Wolf Mountain Resort area. There would have been two fees charged in connection with this–a storm water impact fee (based upon the submitted site plan) and the roadways impact fee (based upon the building size).
The site plan was over 12 acres but the impact area was considerably smaller–the building is only 2,160 square feet. Because of the considerable difference, he believed it would be appropriate in this situation to reduce the storm water impact fee to a smaller area. That area would be the building itself, some additional landscaping around the building and some parking access areas (totaling 0.12 acres) which would normally be associated with a commercial development. The fee for the storm water would be reduced to $660.72 from the original $66,000. He was not recommending any change to the roadways impact fee.
Commissioner Bischoff asked what was the use for the remainder of the parcel and Mr. Christensen responded that it would be the same, most of it was the ski hill. Chair Dearden noted that there was nothing reserved for trails and Mr. Christensen said the ordinance exempted trails for this type of development.
Commissioner Bischoff moved to approve the request for the impact fee reduction at Wolf Mountain; Commissioner Zogmaister seconded, all voting aye.
6. Final reading of an ordinance amending certain county fees relating to planning, zoning, the County Fairgrounds and the County Recorder/Surveyor’s Office - Ordinance 2009-17
David Wilson, Deputy County Attorney, stated that this was the same ordinance presented on 8/25/2009. Another ordinance will be coming for fee changes to other departments.
Commissioner Zogmaister moved to adopt Ordinance 2009-17 amending certain county fees relating to planning, zoning, the County Fairgrounds and the County Recorder/Surveyor’s Office; Commissioner Bischoff seconded.
Roll Call Vote:
Commissioner Zogmaister aye
Commissioner Bischoff aye
Chair Dearden aye
7. Discussion/action on an appeal of the Western Weber County Planning Commission’s decision to deny Conditional Use Permit 2009-11 for storage of light construction equipment in an Agricultural (A-2) Zone
Sean Wilkinson, County Planning Division, stated that today’s discussion should focus specifically on the use that was proposed in the Conditional Use Permit (“CUP”) application and the Planning Commission’s reasons for denial, that other uses allowed in the A-2 Zone do not apply to this appeal. The commissioners packet included staff reports, Planning Commission minutes, applicable ordinance sections, aerial view of the property and the subdivision plat for the Travis Park Place subdivision, which shows that the area is 4.88 acres.
Background: In 2006 the applicant filed an application to amend a zoning ordinance to add up to 6 employees as part of a home occupation. The application was denied by the County Commission. The applicant then submitted a CUP application in 2007 for a lawn care business using language from the county Zoning Ordinance, Chapter 6-4.27,which listed as a conditional use the storage and use of light construction equipment such as a backhoe, front-end loader or up to a 10-wheel truck for off-premise contract work by the owner resident of property of not less than 5 acres. At that time, the Planning Division did not accept the application because there were some zoning violations related to the applicant’s property and the Planning Division did not feel the application met the criteria. The county recently took the applicant to court because of zoning violations on his property and the judge gave the applicant a specific time frame to resubmit a CUP application to the Planning Division to try to come into compliance. It was also stipulated that the applicant would be allowed to use the ordinance language that was in place when the application was first submitted (during this time frame there was ordinance language change to “the use and storage of farm equipment and other related equipment such as a backhoe, front-end loader or up to a 10-wheel truck, to be used by a farm owner, farm employee and/or contracted farm operator of a bona-fide farm operation consisting of 5-acres or more, for off-farm, non-agricultural related, construction work to supplement farm income.”
The applicant submitted CUP 2009-11 for storage of light construction equipment in the Agricultural A-2 Zone. The Planning Commission denied it by a 4-2 vote for the following reasons:
- the proposal does not meet the area requirement;
- the proposal does not meet the owner/operator requirements;
- the proposal does not meet the intent of the General Plan.
Today the applicant is appealing that decision based on two main reasons: 1) that the Planning Commission’s decision was not based on a proper reading of the applicable ordinance governing approval of conditional use permit applications and 2) that the Planning Commission’s decision was not properly based on the evidence presented at and before the hearing.
Staff found that the Planning Commission’s decision was based on a proper reading of County Zoning Ordinance, Chapter 22C-5, which is the basis for issuance of a conditional use permit, and Mr. Wilkinson read the five criteria from this chapter. The commissioners’ packets contained staff’s determination of whether the applicant met that criteria as follows:
1) storage/use of light construction equipment for off-premise contract work by the owner resident of property of not less than 5 acres in area is a use that allows property owners in the A-2 Zone to supplement their income, however, current business operation on applicant’s parcel where employees pick up/drop off equipment is not allowed in this zone nor is it a desirable use inasmuch as the applicant received complaints from neighbors regarding noise, dust and hours of operation, and Weber County has taken the applicant to court to resolve operation related violations. In addition, applicant does not own five acres, a requirement for the proposed use;
2) applicant addressed mitigation methods for noise and dust associated with employees picking up/dropping off equipment, however, employees are not allowed as part of this conditional use so dust, noise, traffic and parking may be minimal concerns. There are no signs on the property, no structures are used for equipment storage, and staff has recommended a landscaping buffer for the storage area;
3) applicant does not comply with all the regulations listed in the ordinance for this use. Applicant owns 4.88 acres and proposed use requires not less than 5 acres. In addition, applicant is proposing to have employees pick up/drop off equipment as part of a business operation, which is not allowed;
4) as proposed by the applicant, the use does not conform to the General Plan because it does not meet all requirements of Chapter 6-4.27 (A-2 Zone);
5) applicant has proposed ways to mitigate potential problems with dust and noise. These appear to be the only environmental concerns associated with the proposed use.
The Planning Commission’s decision was properly based on the evidence presented at and before the hearing. The exhibits provided in the Planning Commission’s packet came from both the applicant and Planning Division and clearly showed that the applicant did not meet the necessary criteria.
Mr. Wilkinson noted that the County Commission needed to consider whether the proposed conditional use application meets requirements of applicable county ordinances, whether the Planning Commission made proper findings in denying the proposed conditional use application, and if the applicable county ordinances pertaining to this application have been properly applied.
Based on the findings listed on the staff report, the Planning Division agrees with the Planning Commission that the applicant does not meet the criteria for a conditional use permit. The application does not meet all the requirements of applicable county ordinances, namely Chapter 6-4.27, (requiring not less than 5 acres and specifying that the use is for owner resident) and Chapter 22C-5 (criteria for items 1, 3, & 4 under Basis for Issuance have not been met). The applicant provided an overlay from the USDA that shows the parcel as having 5.21 acres but Mr. Wilkinson stated that the county is relying on the official county record of the dedication plat for the area. Chair Dearden noted that someone at the Planning Commission hearing had indicated that without the flag lot road the property would be under 5 acres and Mr. Wilkinson said that the entire property, including the flag stem, totaled 4.88 acres. Chair Dearden asked about the difference between the USDA and the county’s record and Mr. Wilkinson stated that the USDA’s exhibit is not surveyed and not official.
Matt Osborne, Attorney for Dave Leslie, gave the Commission photos and said that Mr. Leslie had moved into the property in 2006 with the express understanding that it had 5 acres, believing he could use it to store light construction equipment and without understanding that he needed to apply for a conditional use permit, which had then been brought to his attention. Mr. Leslie then came to the county, filled out an application and paid for a home occupation permit but was soon called and told that because he had employees coming to and from the property he needed to file an application to amend the ordinance to allow home occupations with up to 6 employees coming and going, which Mr. Osborne noted would not have been appropriate–to allow every home occupation in an agricultural zone to have that level of employees. Mr. Osborne said that Mr. Leslie had asked staff (when they recommended the second application) why he would not apply under subsection 27, because it seemed to fit. They told him, and still maintain, that the ordinance applies only to farm equipment. Then Mr. Leslie applied for a conditional use permit under subsection 27 and that was denied at the Planning Division counter because he had an ordinance enforcement charge pending against him and also by the Division Director at that time because it would be futile since it only applied to farm equipment. Mr. Osborne said that there was a court trial and that Mr. Leslie prevailed. The county appealed and the court did not rule on the overall issue, only on the date in question, which predated his application for a CUP, and he was allowed to submit an application under the old ordinance.
Mr. Osborne felt it was appropriate to discuss other uses because one reason given by the county for denying the CUP was that the proposal does not meet the intent of the General Plan, and thus we should be able to look at other uses in the area to determine what is appropriate in the General Plan. He listed some of the permitted uses in the A-2 Zone that have a significantly higher impact and require employees to come and go including: cemeteries, convalescent rest homes, greenhouses, nurseries, dairy farms, grain storage elevators, and private stables; and conditional uses: airports, animal hospitals, child daycare, correctional institution, gun club, and wastewater treatment facilities. Yet, he said, the county had thrown out this application.
When Mr. Leslie purchased the property, both the real estate contract and the MLS listing claimed it was a 5-acre parcel but he recently found out that the county plat says 4.88 acres, and that neighbors had said that the boundaries/markers in the neighborhood had been inaccurate for decades. Mr. Osborne said that the USDA overlay used the same process–taking the legal description and overlaying it on a satellite aerial map–and that the only way to know the lot size for certain was to have it surveyed. He said that the Commission could see that the lines are off all around. He refuted all the grounds given by the Planning Commission stating that this meets the requirements. The proposal was to park three trucks with three enclosed utility trailers that contained lawn mowers, aerators, etc. It is a seasonal business and employees only pick up equipment between 5:30 a.m.-8 a.m. and return between 4-5 p.m. He said that they had offered to discuss the employee issue and put in an alternative in the application for simple storage of light construction equipment, which the county did not address with the Planning Commission, and that it was staff’s inability or desire not to work with Mr. Leslie. He said that staff found this use undesirable because the applicant had received complaints about the operation from two neighbors, however, 16 others signed a petition stating they had noticed no impact. Mr. Leslie had taken mitigative steps and the dust was not more than other residents’ and there was just the sound of car doors opening/shutting. Mr. Leslie had been open to discussing operation hours or other ways to mitigate the impact from the proposed use but no ideas had been given by neighbors or staff.
Mr. Osborne read from subsection 27 and said that Mr. Leslie used the equipment, that there were also employees, but he was the owner operator and the type of equipment was what was listed in the ordinance. He felt that from the beginning staff wanted to pigeonhole the proposed use saying it was not farm equipment or for off-farm contract work to supplement farm income, therefore, did not qualify. Two or three weeks later the county had submitted a petition to amend the ordinance with minor variations and made it a conditional use and eliminated the ability for non-farmers to park light construction equipment on this parcel. He said there was no precedent and no concern about setting one today. He requested a site inspection if there were any concerns about use or mitigation.
Dave Leslie, applicant, stated it was not a disruptive business, that he had struggled with this issue for four years, that it was a small operation and his drivers go at 10 mph and have received more complaints because they drive too slowly. Mr. Leslie addressed his mitigation proposal for dust which he said would result in virtually no dust. He said that one of the neighbors that complained had sued the neighborhood 17 times but had not prevailed, and had told Mr. Leslie that the only reason his wife worked was to pay his attorney fees. Mr. Leslie had counted 18-20 large businesses within 3-5 mile radius of his property and said county staff had not taken any action against them and felt there was a selective enforcement issue. Commissioner Bischoff noted that the issue was how to answer the question of the county ordinance that requires at least 5 acres and that the equipment be for farming purposes. Mr. Leslie said that he would need to have four surveys done around his property.
Ernest Rowley, County Recorder/Surveyor, was present and said that this was the first time he heard this item but from reviewing property north of that area had found issues with some of the section corners and monuments. However, he pointed out the commission needed to be aware of the following:
- the subdivision plat is a surveyed document, that is reviewed for correctness and the representation is that there is 4.88 acres, if there is more land, the document should have indicated such; it was approved as is probably by prior owners and Mr. Rowley assumed that the current owners took title based upon that document.
- regarding the USDA maps, Mr. Rowley said that the USDA was typically not in the habit of re- platting every description of every parcel in the entire United States to get their agriculture maps, but rather relied on some other data, and there may be a problem if the USDA was relying on taxing data because it is different from surveying data and is not intended for identifying physical boundaries.
Regarding Mr. Rowley’s comments, Mr. Leslie said that he had taken the county’s plat to the USDA and they had traced the exact dimensions of that lot on the CAD machine and it came to 5.22 acres but the exact lot size was questionable. The commissioners noted that it was the acreage that was causing the dilemma. David Wilson, Deputy County Attorney, stated that there were some legal issues. He noted that Mr. Osborne represented that if the Commission decided in Mr. Leslie’s favor the decision would have no precedential effect. However, Mr. Wilson expressed his concern that there are two issues that would be problematic both legally and as precedents. Because the governing ordinance requires five acres, approval of this appeal would be a precedent for others to seek approval with less than five acres. Moreover, the ordinance authorizes only a resident/operator provision for the parking of vehicles, Mr. Leslie acknowledges that employees come and go to the property and that is prohibited by the ordinance. He noted that the only way to rectify these problems would be to change the ordinance as had been suggested by planning staff in the first place.
Commissioner Zogmaister noted that there was a deed that stated 4.88 acres and that was the understanding from the beginning, at the time of purchase. Mr. Wilson said that it was unfortunate but this is a case of buyer beware and the applicant has the responsibility to research the applicable zoning ordinances to ensure that the intended use of the property complies with the uses approved for that zone. Mr. Rowley stated that this is an actual surveyed subdivision and the produced documents limit the ownership to lot 2 of the Travis Park Place Subdivision. He said this was not so much a survey issue as what was originally taken title to and the size was as represented on the subject document. Chair Dearden noted that Mr. Leslie had taken his deed to the USDA and they had platted it out and Mr. Rowley asked if it had been done by licensed surveyors, and if so did they do it with the intent of representing the property’s legal lines of ownership. The reality is that one cannot take the subject description and make it larger, it is what was purchased. Mr. Wilkinson addressed the commissioners’ question whether the applicant could come back before the Planning or County Commission if he could demonstrate that the parcel meets the size requirement. Mr. Wilkinson stated that the County Commission was the appeal authority for conditional use permits and if there was a future appeal it would go to the District Court. He said that the application being considered at this time was under the old ordinance and if Mr. Leslie re-surveyed the property and found out that it met the area requirement, he would have to reapply for a conditional use permit under the new ordinance unless, as Mr. Wilson had already stated, there was some kind of continuation of this appeal. Mr. Rowley then noted that the description would not change even if the property was re-surveyed.
Commissioner Bischoff moved to deny the appeal and to uphold the decision of the Planning Commission and their findings that the property is not large enough, does not meet the criteria of the owner resident requirements, and does not meet the intent of the General Plan; Commissioner Zogmaister seconded, all voting aye.
8. Discussion and/or action on taxes for Parcel # 12-020-0025
John Ulibarri, County Assessor’s Office, said that the issue was whether an escaped tax ($883.49) should be collected on this land serial number for the improvement. The County Assessor’s Office discovered the escaped tax through the sales verification process. He explained that the improvement was completed for tax year 2008, however, ownership changed in April 2009 and the current owner was not the owner of record at the time of assessment. Mr. Ulibarri addressed the commissioners’ question regarding whether the county could collect from the original owner stating that the lien falls to the property.
Commissioner Bischoff moved to waive the $883.49 escaped tax for land serial number 12-020-0025; Commissioner Zogmaister seconded, all voting aye.
G. Public Hearing:
1. Commissioner Bischoff moved to adjourn the public meeting and convene the public hearing; Commissioner Zogmaister seconded, all voting aye.
2. Public hearing to consider rezoning property from CVR-1 and AV-3 to CV-2 for the purpose of expanding the Wolf Creek RV storage facility
Sean Wilkinson, County Planning Division, stated that the applicant was requesting the rezoning of two parcels for expansion of the Wolf Creek RV storage facility. One of the parcels is part of an unused large sewer filtration pond but this portion of the pond will not be needed for future sewer effluent storage. It contains 1.26 acres and is currently zoned AV-3, which does not allow recreation vehicle storage and the proposal is to rezone this parcel to CV-2 which allows it as a conditional use.
The other parcel (with the existing RV storage facility) consists of 1.9 acres and is currently zoned CVR-1. In 2002, it was rezoned from AV-3 to CVR-1 to allow for recreation vehicle storage but in 2006 the CVR-1 zone was amended and took out the recreation vehicle storage use. The storage facility is now a legal nonconforming use but rezoning it to CV-2 makes it conforming.
The proposal is for two structures with 32 large storage units to be built in two phases and the units will resemble existing buildings and will be to the south in a low area, which will help mitigate visibility issues from Wolf Creek Drive. The storage units are not allowed for personal storage in the CV-2 zone and this is specified in the Zoning Development Agreement. Mr. Wilkinson read from the Zoning Ordinance, Chapter 35-3, which outlines the rezoning considerations for the Planning and County Commissions. He said that this proposed expansion appears to be in harmony with the General Plan.
The Planning Commission unanimously recommended approval on 7/28/2009 with the requirement that the applicant submit a letter that discussed a plan if in the future there is a need for additional sewer effluent storage. The applicant had met with the Wolf Creek Sewer District and an agreement was signed between the two parties that if in the future additional storage was needed Wolf Creek Properties will provide additional property to the sewer district. Chair Dearden noted that the letter on the storage pond extension agreement indicated that they were unable at this time to determine the future needs and he said that it did not seem to meet the Planning Commission’s requirement. Mr. Wilkinson said that the Planning Commission did want a firm plan to address future needs but the sewer district and the applicant were saying that they did not know if they were going to allow additional people into this facility, if they were going to expand the sewer district, etc., therefore had signed this agreement stating they would in the future provide property if necessary.
Eric Householder, of Wolf Creek Properties, stated that there had been discussion at the Planning Commission meeting regarding whether they could handle the buildout if that pond space was removed, and he felt confident from discussions with their engineer that they could but the engineer wanted to do additional study before putting that in writing. To mitigate those costs, Wolf Creek felt that it could approve an agreement now stating that if additional area will be needed, they will work with the sewer district to accommodate that. Chair Dearden asked if the Planning Commission had seen the agreement and Mr. Householder stated they had not; he had told the Planning Commission they were getting a letter finalized stating they had ample space for infiltration at buildout. Mr. Wilkinson said that the Planning Commission’s recommendation to the County Commission was for approval subject to the letter, and he noted that it was up to the County Commission to determine if it was sufficient. Mr. Householder stated that if this item was approved today, Wolf Creek would submit the conditional use application and the issue would come up before the Planning Commission again.
Chair Dearden invited public comments and none were offered.
3. Commissioner Zogmaister moved to adjourn the public hearing and reconvene the public meeting; Commissioner Bischoff seconded, all voting aye.
4. Action on public hearing:
G.2. - 2. Public hearing on rezoning property from CVR-1 and AV-3 to CV-2 to expand the Wolf Creek RV storage facility - Ordinance 2009-18
Commissioner Zogmaister moved to adopt Ordinance 2009-18 rezoning property located at approximately 4905 North Willow Brook Lane from Agricultural Valley-3 and Commercial Valley Resort Recreation-1 to Commercial Valley-2 for the purpose of expanding the Wolf Creek RV storage facility; Commissioner Bischoff seconded.
Roll Call Vote:
Commissioner Zogmaister aye
Commissioner Bischoff aye
Chair Dearden aye
H. Assign Pledge of Allegiance &Thought of the Day for Tuesday, September 15, 2009, 10 a.m.
I. Public Comments: None
J. Adjourn:
Commissioner Bischoff moved to adjourn at 10:50 a.m.; Commissioner Zogmaister seconded, all voting aye.
Craig L. Dearden, Chair
Weber County Commission
Alan D. McEwan, CPA
Weber County Clerk/Auditor