Minutes for 2009-11-17, Direct pdf link.

MINUTES
OF THE BOARD OF COMMISSIONERS OF WEBER COUNTY
Tuesday, November 17, 2009 - 10:05 a.m.
Commission Chambers, 2380 Washington Blvd., 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: 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 - Fátima Fernelius
C. Thought of the Day - Chair Dearden

D. Consent Items:
1. Purchase Orders in the amount of $376,991.90
2. Warrants #255944 - #256154 in the amount of $829,230.22, dated November 10, 2009
3. Warrants #256155 - #256230 in the amount of $364,915.83
4. Minutes for the meeting held on November 3, 2009
5. Set public hearing for December 22, 2009, 10 a.m., to discuss amending the Subdivision Ordinance, Title 26, Chapter 4, Subdivision Improvements Required, Section 3, Guarantee of Improvements
6. Set public hearing for December 22, 2009, 10 a.m., to consider an amendment to the Transportation Element in Ogden Valley General Plan & adoption of Ogden Valley Transportation Master Plan Map
7. Severance Agreement with Alan W. Reyns - Contract C2009-177
8. Retirement Agreement with Alan Reyns - Contract C2009-178
9. Set pubic hearing for December 22, 2009, 10 a.m.. to consider amending the Zoning Ordinance by adding 74 commercial uses from Chapter 18B (Commercial Valley - 2 Zone) to Chapter 21B (Manufacturing Valley - 1 Zone)
10. Surplus a Chevrolet K10 Truck from the Weber-Morgan Health Department
11. Set public hearing for December 22, 2009, 10 a.m., regarding amendments to the Zoning Ordinance, Chapter 32B (Ogden Valley Signs)
12. Set public hearing for December 22, 2009, 10 a.m., on an amendment to the Zoning Ordinance to amend Chapter 4-A Gravel G-2 Zone to allow contractor equipment storage
13. Set public hearing for December 22, 2009, 10 a.m., to amend Chapter 35, Petitioners Requirements, Rezone Procedure Development Agreement
14. Set public hearing for December 22, 2009, 10 a.m., on an amendment to the Zoning Ordinance, Chapter 30 Land Use Permit, Building Permit and Certificate of Occupancy
Commissioner Bischoff moved to approve the consent items changing the public hearings from 12/8 to 12/22/09; Commissioner Zogmaister seconded, all voting aye.

E. Action Items:

1. Approval to add possible Community Block Grant Project to Weber County’s Capital Improvements for 2010

Dennis Richardson, County Engineering, stated that non-profit agencies that may request sponsorship through the county for CDBG funds need to be added to the county’s capital needs list for 2010. The following three agencies are requesting that Weber County sponsor them for 2010 projects: Weber County Housing Authority (to offer incentives to first time home buyers); McKay Dee Hospital/Midtown Community Health Services (to offers services to disadvantaged children); Triple A Credit (for a low income housing project).

 The following Weber County project is proposed for 2010: install ADA compliant sidewalk ramps at Wheat Ridge Subdivision intersections. In addition, Weber County continues to support non-profit organizations, storm water flood control and ADA standards. Mr. Richardson addressed the commissioners’ questions regarding the CDBG process stating that projects have to be on the list to be eligible to proceed with the pre-application process and there is no guarantee they will receive funds.
Commissioner Bischoff moved to add the possible Community Block Grant projects to Weber County’s capital improvements list for 2010; Commissioner Zogmaister seconded, all voting aye.

2. Contract with the State of Utah District Court to provide Bailiff and Security Services to the courts - Contract C2009-179

Undersheriff Kevin McLeod, Weber County Sheriff’s Office, presented the contract amendment to provide bailiff and security services to the State courts. This amendment simply extends the contract to June 30, 2010; there are no other changes from previous years.
Commissioner Zogmaister moved to approve Contract C2009-179 with the State of Utah District Court to provide bailiff and security services to the courts; Commissioner Bischoff seconded, all voting aye.

3. Amended and Restated Interlocal Cooperation Agreement with Multi County Appraisal Trust (MCAT) to amend the current agreement that established an Interlocal entity known as MCAT - Contract C2009-180

John Ulibari, Assessor’s Office, presented this modification of minimal changes relating to leadership in the executive committee. He said that the fund is now receiving $1.2 million from the State. Commissioner Zogmaister noted that the commissioners wanted those counties that will be implementing this software first to be more involved, thus a subcommittee was set up to provide better representation from those counties. She emphasized that the fees would be coming from Assessing and Collecting and there would be no additional fees required from the county. Mr. Ulibarri concurred stating that currently MCAT had a $300,000 fund surplus.
Commissioner Bischoff moved to approve Contract C2009-180, Amended and Restated Interlocal Cooperation Agreement with Multi County Appraisal Trust (MCAT) to amend the current agreement that established MCAT; Commissioner Zogmaister seconded, all voting aye.

 

4. Contract with Business Depot Ogden for Bill Bailey Blvd. truck access - Contract C2009-181

Jennifer Graham, County Recreation Facilities Director, presented this contract renewal. The contract has existed since about 2005. It allows Business Depot Ogden to use Bill Bailey Blvd. to access the Business Depot for all of their trucks over the 10,000 pound weight limit. Business Depot provides snow removal, some road maintenance, signage, etc.
Commissioner Zogmaister moved to approve Contract C2009-181 with Business Depot Ogden for Bill Bailey Blvd. truck access; Commissioner Bischoff seconded, all voting aye.

5. Resolution of the Board of Weber County Commissioners finding that the current public interest requires the acquisition of a perpetual easement or judicial determination of public dedication through prior public use of an existing paved roadway for the purpose of completing the extension of 900 S.outh as a public street thereby providing public access to areas of western Weber County - Resolution 36-2009

David Wilson, Deputy County Attorney, noted that on 10/27/2009 the Commission adopted a resolution authorizing the condemnation of a section of 900 South to change the status of what may be a private easement to a public easement. At that time Brice Penrod, of Counterpoint Construction (Counterpoint), indicated that the County had not complied with the10-day prior written notice to Counterpoint before placing this matter on the agenda. Mr. Wilson indicated that Mr. Penrod was correct on that point and that the resolution before the Commission this morning is to remedy that matter.
Mr. Wilson then summarized the background of this matter indicating that the county had made efforts to negotiate the purchase of the easement on the road noting that this is not the usual condemnation because the county is only seeking an upgrade from a private easement to a public easement on a small section of an already paved road.

The county retained the services of a commercial appraiser, Stan Craft, of Free and Associates. After the initial inspection for the appraisal, the appraiser contacted a representative of Counterpoint Construction who indicated to Mr. Craft they were not interested in cooperating or allowing him on the property. After the appraisal was completed and based upon that appraisal, the county issued an offer of $7,750 to purchase the property. Mr. Wilson noted that when there is condemnation for a roadway, the county cannot condemn to own the property in fee simple but only for a public easement, therefore, that the appraisal should have been a bit less, nevertheless the county tendered the full amount of the appraisal. The county met with Counterpoint on 8/5/2009 to negotiate a purchase of the easement and the county offered the amount of the appraisal and indicated it may be willing to offer more than the appraisal. Counterpoint rejected the county’s proposal and when the county pressed Counterpoint for an amount they would accept, Counterpoint indicated it would take several million dollars to buy the easement. The parties then terminated their negotiations.

The county has given the requisite statutory notices to Counterpoint including the 10-working day written notice for this morning’s consideration of a resolution authorizing condemnation to obtain the public easement. This resolution is the final step in the eminent domain process before filing suit. Written notice of this item had been sent along with a summary of the just compensation to Counterpoint explaining the basis for the appraisal and offer. A renewed offer to purchase was also sent with a deadline of 11/13/2009 for a response, but no response was received. Mr. Wilson noted that included in the notices provided to Counterpoint was the information that they can utilize the State Property Rights Ombudsman, and they have elected to do so. Mr. Wilson informed the Ombudsman’s Office that the county would not be willing to mediate whether the county would file the eminent domain action and seek immediate occupancy as the county intends to move forward if the Commission adopts the resolution to file an amended complaint and serve the interested parties. However, Mr. Wilson informed the property rights ombudsman that the county may be willing to mediate value. A copy of the resolution before the Commission today was faxed to Mr. Penrod yesterday in accordance with his request.

The suit will follow two paths, both paths seeking the same result. In addition to seeking to obtain title to a public easement over the section of the road owned by Counterpoint, the county will also seek to have the court recognize that this road is dedicated to public use by open and continuous use of the public. It appears there are a significant number of witnesses who can give good testimony that the public used that road on a regular basis which meets the statutory requirement that it be open and continually used by the public for at least a period of 10 years.

Mr. Wilson noted that before adopting the resolution, the Commission was required to give the property owners an opportunity to comment and that Mr. Penrod was present.

Brice Penrod, of Counterpoint Construction, stated that he was here to speak as to 1) why the county should not take their two-lane highway in support of a for-profit construction and demolition (C&D) landfill, and 2) what would happen if the county pursued it. He said that to date they had spent about $100,000 in opposing the county’s attempt to promote this facility and the county had violated its own mandates as to ownership, zoning requirements, public hearing rules and procurement; the contract authorizing the landfill operations was valued at about $100 million in proceeds to the private operator; the negotiations were conducted in secret with no consideration for the free and open competition required by the county’s purchasing regulations; the Commission should cease this activity because they were awarding the landfill operator an agreement that violated State and county laws.

 Mr. Penrod again provided the comments that he had given at the 11/3/2009 Commission meeting: In the summer 2008 the only local operating C& D landfill topped out/ceased operations; the county had said it had to go into the landfill business because private enterprise had not filled that void, yet at that time there was a State permitted C&D landfill only 1½ miles from the former facility; this facility was a turnkey operation ready for business if the county had allowed the private operator the same zoning variance that it grant itself for the proposed landfill; this facility required no time/money investment by the county; this Commission had chosen to ignore the available landfill to the detriment of the citizens; the citizens had suffered an interruption in C&D landfill service for nearly 1½ years; this Commission had established fees for the new landfill facility which were twice those of the topped out facility; the site of the county landfill was near the western border of the county and the private landfill was centrally located. He asked where was the equity in an arrangement where the taxpayers/users of the county facility will pay greatly increased transportation costs, higher tipping fees, cost of acquisition and maintenance after closure.

Mr. Penrod said that their appeal regarding the county’s DEQ permit had been accepted by the Utah Solid Waste Board and the issue would be heard as to whether the permit should be granted or revoked; he understood from the 9/2008 email with Hansen Allen & Luce that the county planned to take their property prior to them obtaining full title and without just compensation; the county’s knowledge and deception had prejudiced the process, the county had an opportunity to buy the other landfill property in 2007 and to bid out the project; and the contract entered into for the landfill purchase and operations was void by its own terms. He asked how the county could justify taking the property when it had no viable public use and said that prudence dictated that the county stop this process because it had no firm legal basis. He gave the Commission a copy of page 1 of a letter received from David Wilson, Deputy County Attorney, dated November 2, 2009, which referenced the appraisal of their property–the 2-lane highway for access to the landfill–performed on 3/2009. He said that based on the appraisal, the county offered them about $4,200/acre which was $2,200 less/acre than they paid for the property and less than the $6,400 the county agreed to pay for the landfill property and initial improvements; that Mr. Wilson’s letter stated that the appraiser contacted Mr. Penrods to accompany him on the property inspection, however, the property was inspected by Mr. Craft on 3/20/2009 and they were first advised of the appraisal by Mr. Craft on 3/23/2009, and these dates were taken from Free and Associates’ written report dated 3/31/2009 addressed to Mr. Wilson.

Mr. Penrod also gave the Commission a copy of Utah law relating to condemnation proceedings and said that the Property Rights Ombudsman told him that State law requires the property owner to be given the opportunity to accompany the appraisers for property to be taken through eminent domain. He said that the instant the county closes on the property, the taxpayers will be liable to the operator of the landfill for $12 million if he is not allowed to construct the landfill. Mr. Penrod has never seen any amount guaranteed to a contractor for not fulfilling the contract and the county did not consider going out to bid for the project. He said it was possible that the Commission’s actions in the past resulted from being misinformed.

Mr. Wilson stated that someone should respond to Mr. Penrod’s comments. In the past, the Commission has allowed Mr. Penrod to speak without countering his misstatements of both the law and the facts and so the comments stay on the record that way. Mr. Wilson stated that Mr. Penrod made a number of mis-statements of both fact and the law. When Mr. Penrod referred to a “permitted landfill” he assumes the Commission could have just approved that item. He said that the owner of the property for the proposed landfill may have received a permit from the State but that the proposed landfill was neither a permitted use nor a conditional use within the zone in which the property was located. The owners of the property sought to have the property rezoned by the county but both the Planning Commission and County Commission had denied the application for rezoning the parcel. Ogden City, the Ogden Airport Authority and Roy City opposed the proposed rezone and the County Commission did not rezone the property. The Commission’s reasons for denying the application for the rezone will be in the minutes of that meeting. He noted that people take a risk when they purchase property if it is not already zoned for their desired use.
Commissioner Bischoff moved to adopt Resolution 36-2009 finding that the current public interest requires the acquisition of a perpetual easement or judicial determination of public dedication through prior public use of an existing paved roadway for the purpose of completing the extension of 900 South as a public street thereby providing public access to areas of western Weber County; Commissioner Zogmaister seconded.
Roll Call Vote:
Commissioner Zogmaister aye
Commissioner Bischoff aye
Chair Dearden aye

F. Public hearing:

1. Commissioner Zogmaister moved to adjourn the public meeting and convene the public hearing; Commissioner Bischoff seconded, all voting aye.

2. Public hearing to consider potential projects for which funding may be applied for under Community Block Grant Programs 2010

Dennis Richardson, County Engineering, stated that this public hearing was being held to supply information regarding the 2010 Community Development Block Grant (CDBG) program, to solicit possible projects that may be eligible for the funds, and to field possible suggestions and questions about the projects from the citizens. The national objective of this program is for grant money to primarily be spent to benefit low to moderate income persons, but other national objectives include using funds to aid in the prevention or elimination of slums or blight and may also be used to meet urgent needs because existing conditions pose a serious and immediate threat to health and welfare. Eligible activities are identified in the CDBG application guide that is available for review by interested parties. Possible CDBG projects include ADA improvements, public works infrastructure projects in qualifying areas, property acquisition, public services such as food banks and homeless shelters and loan programs for private businesses that hire low income persons or for persons who own rental housing and rent to low income persons.

This year, projects will compete between Weber, Morgan, Davis & Tooele counties and can expect approximately $2,000,000 in CDBG funds. This year projects will be rated by a regional council made up of an elected official and a staff member from each county to determine what projects can proceed with final application. All pre-applications must be submitted to the Wasatch Front Regional Council by December 4, 2009.

The county does not currently have any active grant projects. In the past, Weber County received grants for developing ADA compliant campsites, installing ADA compliant door hardware at the fairgrounds, installing storm drains in low to moderate income communities to reduce flooding, installing wheelchair ramps at street intersections to make pedestrian sidewalks more accessible, as well as sponsoring non-profit agencies such as Your Community Connection, Ogden Weber Community Action Agency, Catholic Community Services.

Possible projects in which funding may be applied for are indicated in the regional Consolidated Plan available for review in the Weber County Planning Office. A possible county project for the 2010 funding year is the construction of wheelchair ramps at intersections in the Wheatridge Estates Subdivision in order to comply with ADA standards. The Weber County Housing Authority would like to apply for funds to offer incentives to first-time home buyers and McKay Dee Hospital/Midtown Community Health Services would like to apply for funds to help in a program that offers medical services to children who are unable to afford them.

Mr. Richardson addressed the commissioners’ questions stating that McKay Dee Hospital/Midtown Community Health Services tracks services provided to children that they help from the cities and unincorporated areas and only want a portion of funds to help offset costs to help children outside of Ogden City. He said that Ogden City uses most of its funds for redevelopment.  Commissioner Zogmaister stated that Midtown has had a significant increase in the number of patients. Triple A Credit had not contacted Mr. Richardson but had attended a workshop. Mr. Richardson noted that storm water flood control projects are generally ongoing.

Chair Dearden invited public comments. Landon Halverson, Director of Weber Housing Authority, gave an overview of their application for $250,000, which was for a down-payment assistance program for first low to moderate income families and first time home buyers. It excludes Ogden City because the City operates its own down payment assistance programs.

3. Commissioner Bischoff moved to adjourn the public hearing and reconvene the public meeting; Commissioner Zogmaister seconded, all voting aye.

4. Action on public hearing:

F.2.- to consider potential projects under Community Block Grant Programs 2010
Commissioner Bischoff moved to proceed with the pre-application process for the 2010 Community Block Grant programs; Commissioner Zogmaister seconded, all voting aye.

G. Assign Pledge of Allegiance & Thought of the Day for Tuesday, November 24, 2009, 5:30 p.m. The Public Hearing will begin at 6:00 p.m.

H. Public Comments: None

I. Adjourn
Commissioner Bischoff moved to adjourn at 11:04 a.m; Commissioner Zogmaister seconded, all voting aye.

Craig L. Dearden, Chair
Weber County Commission
Alan D. McEwan, CPA
Weber County Clerk/Auditor