Meeting Information
The County Commission will meet at 4:00 p.m. for administrative and at 6:35 p.m. for public items. Please see the 4:00 p.m. agenda for the full packet.
Gaughan called the regular meeting to order at 4:00 p.m. on Wednesday, November 28, 2012 with all Commissioners present.
MINUTES 11-28-12
Gaughan moved to approve the minutes for October 10, October 17 and October 24, 2012. Motion was seconded by Thellman and carried 3-0.
CONSENT AGENDA 11-28-12
Gaughan moved approval of the following Consent Agenda item:
► Commission Order Nos. 12-035, 12-036, 12-037, 12-038, 12-039 and 12-040 (on file in the office of the Clerk); and
► Acquisition of permanent easement for culvert replacement 7.51N-18.00E; Project No. 56-23KA-2294-01; Road 192 (N300 Rd) US 56 Hwy, Tract No. 1 with property owner: Shirley B. Johnson Revocable Trust Agreement dated October 26, 2010; and Tract 3 with property owner Jo-Allen Land LLC, A Kansas limited liability company; Tract 6 with property owner Baldwin Hilltop Animal Health Center LLC, A Kansas limited liability company;
► Acquisition of Easement for Drainage Structure Replacement No. 7.51N-18.00E , Project N. 07511800, Road No. 566 (E1800 Rd); Tract No. 2 with property owner Jefferson W. and Linda S. Seabaugh, Prairie Village, Kansas;
► Resolution 12-42, granting a cereal malt beverage license to Clinton Marina, 1329 E 800 Road, Lawrence;
► Resolution 12-43, granting a cereal malt beverage license to Clinton Submarina, 1329 E 800 Road, Lawrence;
► Resolution 12-44, granting a cereal malt beverage license to Flamingo Enterprises/The Bird of Lawrence, 1626 E 1500 Road, Lawrence;
► First Amendment to Lease Agreement with United Way of Douglas County, Kansas regarding property located at 2518 Ridge Court and known as "Valley View";
► 2013 holiday schedule:
New Year's Day Tuesday, January 1
Martin Luther King's Day Monday, January 21
Memorial Day Monday, May 27
Fourth of July Thursday, July 4
Labor Day Monday, September 2
Thanksgiving Thursday-Friday, November 28-29
Christmas Wednesday, December 25
Two (2) Personal Discretionary Days; and
► Authorized the Emergency Communications Director to approve and sign the Entry and Testing Agreement between Douglas County and Jere McElhaney, property owner, for testing related to the development of the proposed Globe tower site;
Motion was seconded by Thellman and carried 3-0.
NATURAL AND CULTURAL HERITAGE 11-28-12
The Board considered a contract extension for the Douglas County Cultural and Historic Resources Survey. Jeanette Blackmar, Heritage Council Coordinator, presented the item. In January 2012, the Board contracted with Dale Nimz to conduct a natural, cultural and historical resources survey of Eudora and Kanwaka Townships. In total, 168 properties were surveyed and more than 400 buildings, structures and landscapes features were inventoried, which presents the completed survey of the unincorporated area of Eudora Township and a partial survey of the unincorporated areas of Kanwaka Township.
The Heritage Council seeks to extend the contract with Nimz for the next phase of the survey work for the remaining areas of Kanwaka and Wakarusa Townships. According to Blackmar, $35,000 has been allocated from the 2012 budget for this project.
Flory stated he opposed spending funds when we are not sure what is going to happen in the future with our finances. He feels the allotted monies should be unspent and carried over for expenses we incur in the future. He would like to see the County seek federal funding for these projects.
Gaughan asked Blackmar if she anticipated the inventory of each township to take a year. Blackmar stated no other county in Kansas has done a comprehensive survey; we're on the cutting edge. She anticipates the survey work to take six months and the inventory to take several months.
Gaughan opened the item for public comment. No comment was received.
Gaughan moved to waive the formal bidding process and approve a contract extension in the amount of $35,000 with Dale Nimz to survey the remaining areas of Kanaka and Wakarusa Townships. Motion was seconded by Thellman and carried 2-1, with Flory in opposition.
NATURAL AND CULTURAL HERITAGE 11-28-12
The Board considered the approval of a "Douglas County Kansas Heritage Conservation Plan" to be submitted to the Kansas State Historical Society for designation of Douglas County as a Certified Local Government. Jeanette Blackmar, Heritage Council Coordinator; and Shelly Higgins Clark, Heritage Council, presented the item.
Flory stated after the presentation he would like to have this item deferred to a future agenda at 6:35 p.m. to give members of the public an opportunity to speak on this item and its possible future impact in neighboring properties.
Thellman commented this d sn't impose anything on the residents of Douglas County, only those who choose to participate in the program. Clark responded it will only affect the properties that are nominated. There will be no environs review.
Flory stated there is no environs impact provision in our documents, but we must agree to comply with the National Preservation Act and the State Preservation Act. He is concerned whether state or federal provisions would affect us.
Clark stated only the State of Kansas has an environs review. The only way this body would be involved in an environs review on a property is if is state registered and we were asked to comment. We are only establishing a local register. Flory added we would be obligated to enforce the state provisions.
Gaughan opened the item for public comment.
Paul Bahnmaier, Lecompton resident, stated only one other county in Kansas, Doniphan County, has adopted this and 15 cities. He questioned whether the plan would cause rural residents to get a permit to demolish a house, or cut down trees, not allow live stock to cross streams, or prohibit pasture burning.
Flory stated he wants to make sure we aren't creating unintended consequences. He asked why other counties are not jumping to become certified local governments.
Linda Finger, Interim Director of Zoning & Codes, replied the major reason other counties have not pursued the certified local government designation is the lack of funding and the time commitment involved.
Gaughan moved to defer this item to the December 12, 2012 agenda at 6:35 p.m. to allow for public comment. Motion was seconded by Flory and carried 3-0.
PURCHASING 11-28-12
The Board considered a recommendation to contract for architectural services on the new Public Works facility. Jackie Waggoner, Purchasing Director, presented the item.
The County solicited proposals for design professional services for phases 1 and 2 for construction of the new Public Work's facility. Waggoner stated 10 proposals were received. Based on evaluation criteria met, seven firms were selected for interviews. The overall consensus of the project committee was to recommend Clark-Huesemann, based upon their qualifications and cost proposal. Waggoner recommends awarding both phases 1 and 2 of the project for Clark-Huesmann. A negotiated fee of $219,026.00 is proposed for phase 1. We won't know the final cost of phase 2 until phase 1 is completed.
Flory asked staff how we intend to proceed with payment for this phase of the project. Sarah Plinsky, Assistant County Administrator, stated the County would probably issue bonds for this project before we make payment. However, there are funds available to get the project started.
Gaughan opened the item for public comment. No comment was received.
Thellman moved to accept the negotiated proposal with Clark-Huesmann for phase 1 in the amount of $216,026.00. Motion was seconded by Gaughan and carried 3-0.
ZONING & CODES 11-28-12
Flory moved to approve Home Rule Resolution 12-11-5 amending the construction codes of Douglas County, September 19, 2012 addition, as codified at Chapter 13 of the Douglas County Code. Motion was seconded by Thellman and carried 3-0.
ZONING & CODES 11-28-12
Flory moved to approve Resolution 12-45 of the Board of County Commissioners of Douglas County, Kansas dissolving current Board of Construction Codes Appeal and appointing new members to the Board Construction Codes Appeals. Motion was seconded by Gaughan and carried 3-0.
Note: New board members will be appointed at a later date.
PLANNING 11-28-12
Scott McCullough, Director of Planning, presented the board with a recommended long-range planning work program, discussed projects completed in 2012, projects scheduled to begin in 2013 and major projects projected beyond 2013.
Thellman thanked McCullough and members of his planning staff for their participation in the Food Policy Council's recent Food System Planning Conference. She requested that McCullough consider assigning a planner, possibly Amy Miller, as a liaison to the Food Policy Council as they work on food system planning. McCullough said he would be happy to participate in planning discussions and a long-range planner like Amy, would be the right person for the Food Policy Council.
Gaughan opened the item for public comment. No comment was received.
Gaughan moved to accept the plan as presented. Motion was seconded by Thellman and carried 3-0.
ACCOUNTS PAYABLE 11-28-12
Gaughan moved to approve accounts payable in the amounts of $766,753.25 paid on 11/15/12 and $275,457.34 to be paid on 11/29/12; a wire transfer in the amount of $1,443,856.00 paid on 11/08/12; and manual checks in the amounts of $32,256.00 paid on 11/16/12 and $271,689.50 paid on 11/21/12. Motion was seconded by Thellman and carried 3-0.
APPOINTMENT 11-28-12
Flory moved to appoint the following people to the Douglas County Fair Board eligible for six one-year terms to expire December 2018: Kate Welch, Lecompton Township; John Leslie, Kanwaka Township; and Shane Newell, Willow Springs Township. Motion was seconded by Gaughan and carried 3-0.
APPOINTMENT 11-28-12
Gaughan moved to appoint the following people to the Douglas County Senior Services Board; Ken Massey, term to expire 12/31/13; Jason Hornberger, term to expire 12/31/14; Ellen Paulsen, term to expire 12/31/14. Stacey Hunter-Schwartz, term to expire 12/31/14; Patty Johnston, term to expire12/31/15; and Sue Brown, term to expire 12/31/15. Motion was seconded by Flory and carried 3-0.
APPOINTMENT 11-28-12
Flory moved to reappoint James A. Hill to the Douglas County Jayhawk Area Agency on Aging with second term to expire 09/30/15. Motion was seconded by Flory and carried 3-0.
RECESS 11-28-12
Gaughan moved to recess until the 6:35 p.m. meeting time. Motion was seconded by Thellman and carried 3-0.
RECONVENE
The Board reconvened at 6:35 p.m.
PLANNING 11-28-12
The Board considered the approval of a Temporary Set Aside Agreement for property being platted as Sadies Lake Addition (PF-1-1-12). Sadies Lake LC is the property owner of record. Mary Miller, Lawrence-Douglas County Metropolitan Planning staff, presented the item.
A Temporary Set Aside Agreement or permanent conservation easement is a requirement when platting environmentally sensitive property in the unincorporated areas of the County. The set aside agreement will protect 20% of the property. The protected area contains flood plain and stands of mature trees.
Gaughan opened the item for public comment. No comment was received.
Gaughan moved to approve the Temporary Set Aside Agreement for Sadies Lake Addition. Motion was seconded by Flory and carried 3-0.
PLANNING 11-28-12
The Board considered the approval of CUP-12-00154, a Conditional Use Permit for Kanwaka Corner Self Storage, on approximately three acres located at the southeast corner of U.S. Hwy 40 and Douglas County Road 442/N 1600 Road. The application was submitted by Landplan Engineering, for Ryan Sparke, property owner of record. The Planning Commission approved the item with conditions on a unanimous vote. Mary Miller, Lawrence-Douglas County Metropolitan Planning staff, presented the item.
The property is zoned B-2 (General Business) District. Under Section 12-310-2.12 of the Zoning Regulations for the Unincorporated Territory of Douglas County, a wholesale establishment or warehouse is permitted under this district when located in a completely enclosed building so long as the floor area d s not exceed 20,000 square feet. The self storage facility, as requested by the applicant, exceeds 20,000 sq ft. A self-storage facility is a use which may be approved as a Conditional Use.
Staff recommends approval of the Conditional Use Permit for Kanwaka Corner Self Storage with the conditions of approval listed in the staff report based upon the following findings of fact:
I. Zoning and uses of property nearby. The area contains a major transportation network with the intersection of US Hwy 40, County Route 442/N 1600 Road, and E 700 Rd, all principal arterials. The predominate zoning in the area is Agricultural and agriculture and rural residences are the principal land uses. A-1 Zoning and a rural residential subdivision is located on the northwest corner of the intersection and B-2 Zoning is located east and west of the subject property; commercial uses have been developed on the properties to the east.
II. Character of the area. This is a rural residential and agricultural area with limited commercial uses. The subject property is located on a major transportation corridor within the Lawrence Urban Growth Area. The proposed use, a self-storage facility, could be compatible with the character of the area.
III. Suitability of subject property for the uses to which it has been restricted. A Conditional Use Permit (CUP) d s not change the base, underlying zoning; therefore, the suitability of the property for other commercial uses permitted in the B-2 District will not be altered. The property has good access to the major transportation network and is also well suited for the proposed use of self-storage.
IV. Length of time subject property has remained vacant as zoned. The property was rezoned to the B-2 District on July 20, 2011 with Resolution No. 11-24. The property has remained vacant as zoned for approximately 15 months.
V. Extent to which removal of restrictions will detrimentally affect nearby property. The proposed use is similar to the permitted warehouse use within the B-2 District with the exception that the total area of the storage building will exceed 20,000 sq ft in area. The TIS indicates that the increased traffic associated with the proposed use will not have a negative impact on the capacity of the roadway networks in the study area. With the safety improvement recommended in the TIS, and the design standards required in the CUP process, the proposed use should not negatively impact surrounding properties.
VI. Relative gain to the public health, safety and welfare by the destruction of the value of the petitioner's property as compared to the hardship imposed upon the individual landowners. Denial of the request limits the scope of the business for this site. Denial of the CUP would not benefit the public safety, health, or welfare. Approval of this request d s not directly harm the public health, safety and welfare; but would provide a benefit in the improved access point location on Douglas County Road 442/N 1600 Road.
VII. Conformance with the comprehensive plan. The proposed use is in general conformance with the recommendations in the Comprehensive Plan as it is a permitted use within the existing Zoning District. Consideration is being given to the design of the facility, which is larger than permitted in the B-2 District, to insure that it is compatible with surrounding properties.
And subject to the following conditions as approved by the Planning Commission:
1.) The provision of a revised Conditional Use Site Plan with the following changes:
a. Addition of a note indicating the prohibited activities listed in Section 12-319-4.34(i) of the Zoning Regulations.
b. Addition of a note that the area shall be policed by the owner operator for removal of trash and debris.
c. Addition of a note indicating the potential for the southern unit to be converted into a restroom for the use of storage tenants.
d. Addition of landscaping along the east 36 ft of the northern border in the southwest corner of the property. Landscaping located to the east and south of this area can be relocated to the west.
e. Variance shall be required from the prohibition from fencing in the front yard setback to allow the required fencing for the mini-storage facility.
Brian Sturm, Landplan Engineering, stated the property is zoned commercial and is very suitable for a storage proposal. This project takes land already zoned commercial and makes significant improvements to the safety of the intersection and existing driveway. The land improvements may also serve the property to the west if eventually used for commercial use.
Gaughan opened the item for public comment.
Walt Spencer, 761 Highway 40, stated concerns that a fire truck or semi truck cannot make it in the driveway. He said he would like to see the buildings all setback further in case Highway 40 is moved and he believes there are encroachment issues with fences and ownership issues with easement property owned by the State of Kansas.
Mel Hodgipath, 1552 E 700 Road, stated he is concerned the development will create runoff issues to the adjacent pond and he said he agrees with Walt Spencer's concerns.
Gaughan responded a number of the issues brought up by Spencer were discussed at the Planning Commission level. He feels Strum, Landplan Engineering, will do a good job of addressing the issues of the ownership of the applicant's property.
Miller commented on the fire truck concern, that copies of the plans were sent to the Kanwaka Fire Department for review to ensure they had appropriate access to the lot. Miller stated Kanwaka d sn't have any large fire trucks and it was established the drive will accommodate u-haul trailers.
Thellman said it seems the greatest concern to the neighbors is the possibility of runoff and pooling in the southwest corner of the property. Keith Browning, Director of Public Works, referred to a drainage study required by the applicant to show any backup to downstream culverts and roads. The amount of additional runoff was minimal. The culverts immediately downstream showed about a 5% increase. The driveway coming off 442 with a low water crossing showed a 2% increase. He did not study the pond in the southwest corner but felt Landplan would have looked into that.
Sturm stated the studies on that pond showed no significant backup. The water may overflow into a culvert downstream. The site in the overall watershed will have a minimum impact with increased runoff.
Flory stated if there is concern about a backup in the lateral field, no permit has been issued for that at this time. The lateral field will need to meet standards during the permitting process. The client will need to address any issues at that time.
Gaughan questioned if there is something unique about storage units that would create runoff that is different than another type of project a B-2 zoning would create. Sturm said the project will consist of buildings with roofs and gravel payment which is not out of line in terms of the maximum impervious square footage allowed on a B-2 parcel. Anything that g s on that land will increase the impervious square footage similarly.
There was discussion regarding the septic system requirement not being part of the CUP process, but of the building permit process.
Gaughan addressed an earlier concern regarding fence encroachment. Ownership is determined at the county level so the correct property owners will be determined regarding the fencing locations.
Thellman stated she feels Landplan will take special care with Richard Ziesenis to evaluate the runoff at the corner of the pond. The concerns would be addressed at the septic system permit level.
Gaughan moved to approve CUP 12-00154 for a Condition Use Permit for Kanwaka Corner Storage with the above listed conditions approved by the Planning Commission. Motion was seconded by Flory and carried 3-0.
Note: The State of Kansas recommended the proposed access drive and agreed to the proposed right of way.
PLANNING 11-28-12
The Board considered CUP-12-00099, a Conditional Use Permit for sand excavation and extraction for Penny Sand Pit. The project has approximately 434 acres and is located on the northeast corner of N 1500 Road and E 1850 Road. The application was submitted by Landplan Engineering, for William Penny & Van LLC, property owners of record. Mary Miller, Lawrence-Douglas County Metropolitan Planning staff, presented the item.
The proposed site is within three miles of the Eudora city limits.
Staff recommends approval of the Conditional Use Permit for Penny Sand Pit based upon the following findings of fact:
I. Zoning and uses of property nearby. The area is zoned V-C (Valley Channel) and portions are encumbered by the Regulatory Floodway and the Regulatory Floodway Fringe. The predominate land uses in the area are agriculture, mining and extraction, and rural residential. The proposed land use, mining and excavation, is permitted in the V-C District and has been approved in the area.
II. Character of the area. This is predominately an agricultural area with scattered rural residences, floodplain, and natural resources in the form of sand reserves and high quality agricultural soils. North1500 Road, a minor collector, provides a connection through the area to minor arterials to the east and west.
III. Suitability of subject property for the uses to which it has been restricted. The property is well suited to the agricultural and residential uses to which it has been restricted by the V-C Zoning District. The property is also suited to the Conditional Use of mining and excavation provided that appropriate measures are taken to minimize negative impacts on nearby residences. A policy decision for the Commission would be a decision regarding the competing natural resources in the area: high quality agricultural soils and off-river sand reserves.
IV. Length of time subject property has remained vacant as zoned. The V-C District permits limited development of agricultural, recreational uses and farm residences. The property has been used for farming and 2 farm residences were constructed on the property in the early 1900s. There has been no other development on the subject property.
V. Extent to which removal of restrictions will detrimentally affect nearby property. Potential negative impacts the proposed use could have on nearby properties include the noise and activity associated with the mining, reduced visual appeal created by stockpiles of overburden or topsoil, impacts on well water, and traffic. Conditions should be placed on the CUP to minimize potential negative impacts on nearby properties.
VI. Relative gain to the public health, safety and welfare by the destruction of the value of the petitioner's property as compared to the hardship imposed upon the individual landowners. Denial of the CUP would result in a hardship to the applicant and public in that it would prohibit the applicant from operating a sand pit to produce sand and aggregate products from local reserves. Denial of the CUP may benefit the public at large by maintaining the high quality soils which are present. To weigh the benefit the denial of the CUP would have on the public, protection of high quality soils, versus the impact it would have, loss of potential sand and aggregate production from a local source, it is necessary to choose between these two natural resources in this location.
VII. Conformance with the comprehensive plan. The proposed use is in general conformance with the recommendations in the Comprehensive Plan; however, it is proposing the use of marketable natural resources rather than the protection of High Quality Agricultural Land.
And subject to the following conditions:
1) The approval is contingent upon the issuance of all State and/or Federal permits which are required for this operation including the Army Corps of Engineers.
2) An agreement designating responsibility for the ongoing maintenance of the berms to the property owner shall be executed and recorded with the Register of Deeds prior to the release of the CUP plans to the Zoning and Codes Office. A copy of the agreement shall be provided to the Planning Office for the file.
3) A copy of the easement for the off-site access drive shall be provided to the Planning Office for the file prior to the release of the CUP plans to the Zoning and Codes Office.
4) The applicant shall obtain a Flood Plain Development Permit from the Director of Zoning and Codes prior to the release of the CUP plans.
5) The reclamation plan shall be revised with the following changes prior to release of the CUP plans:
a. The plan shall note the requirement that the lake that is being created will have a varied shoreline and will appear natural in appearance.
b. The plan shall note that the intended use of the lake, when mining and reclamation is complete, is to be a recreational feature.
c. The plan shall note the maximum slope of the lake shoreline for a specified depth to insure that the slopes are of a grade that it would be possible for a person or animal that accidentally entered the lake to exit.
d. The plan shall explain the sequential nature of the reclamation process; that overburden produced in one phase will be used to reclaim previously excavated areas.
e. The reclamation plan shall note that topsoil will be placed over the overburden in areas that are to be reclaimed as farmland, shoreline, or berms. If topsoil is to be stockpiled and stored it must be vegetated to prevent erosion.
6) The applicant shall submit a revised CUP plan with the following changes:
a. A detailed landscaping plan for the buffer area surrounding the McElwee house will be submitted.
b. The Book and Page number of the recorded easement for the off-site access road shall be noted on the CUP plan.
c. The ownership shall be noted as Van, LLC as well as Penny's Concrete Inc. on the CUP plan.
d. The on-site residential structure on the east side of the property will be shown on the CUP plan as on the reclamation plan.
e. If stockpiling of overburden is to occur on the subject property, the CUP or operation plan should note the maximum height and approximate location. The stockpiles should be placed as far from the existing residences as possible.
f. List the following CUP conditions on the plan:
i. Hours of operation are 6:30 AM to 6:30 PM, Monday through Friday. No removal, transfer, or placement of overburden is permitted outside these operating hours; however dredging and extraction of sand may exceed these hours when necessary.
ii. The approval for this Conditional Use is valid for 30 years. An extension request for the CUP must be submitted prior to the expiration date or a new CUP application must be submitted. The Zoning and Codes office shall conduct 5 year administrative reviews to insure compliance with the CUP, operation, and reclamation plans.
iii. The only exterior lighting in the areas to be excavated will be the headlights on the dredge.
iv. The scale house, processing plant, sediment pond, and stockpile area, approved with CUP-2-2-79, will be used to serve the subject property.
v. Sales of overburden, topsoil, sand or aggregate products will occur only on the portion of the property that contains the scale house on the CUP plan.
vi. Truck traffic will utilize Noria Road (E 1750 Road), and is restricted from using N 1500 Road or E 1850 Road.
vii. The applicant shall work with the Army Corps of Engineers to determine how the existing wetlands on the property will be treated. Prior to any excavation in Phase 21, the applicant will provide documentation to the Planning Office on the wetlands indicating whether the wetlands will be maintained on site or if they will be mitigated elsewhere. If the wetlands will be maintained on site, the operation plan will be revised to include the protection measures and the property owner shall submit a revised CUP plan for administrative review/approval of the wetland setbacks. If the wetlands are to be mitigated, a revised CUP plan shall be submitted to note the removal of the wetlands.
viii. Dredging on the subject property shall not occur concurrently with dredging on the property to the north as approved with CUP-2-2-79.
And a proposed condition added by the Planning Commission:
ix. The applicant shall install three observation wells and one control well and that the City of Eudora be allowed to monitor those wells on an ongoing basis
7) The following improvements to nearby roads and intersections shall be completed per the County Engineer's approval before issuance of a permit for the Conditional Use :
a. Realignment of the entrance to the sand facility so that it opposes the Noria Road intersection at N 1500 Road.
b. Pavement of a 100 ft long section of the site access drive just north of N 1500 Road, as recommended in the TIS.
c. Reconstruction of pavement in the Noria Road (E 1750 Road)/N 1500 Road intersection. The existing surfacing is likely a crushed rock base that has been chip sealed. This will not stand up to the increased truck traffic crossing N 1500 Road.
d. Construction of an eastbound right turn lane on Route 442 (N 1400 Road) at Route 1057 (E 1900 Road). This is mentioned as a desirable improvement in the TIS. Pavement on the existing shoulder at this location is not adequate for the projected amount of truck traffic.
The Board divulged ex parte communications as follows:
Gaughan met with Dan Watkins and Phil Stuble; had phone conversations with Laura Berger and Kerry Altenbernd; had a brief conversation with Collin Bielser and Clay Britton; and received an email from Clark Coan.
Thellman had a conversation with Dan Watkins, Kirk von Achen, John Harrenstein and Collin Bielser, Keith Browning, and Scott McCullough; a phone conversation with Kerry Altenbernd, and received an email from Clark Coan.
Flory spoke with Dan Watkins and Richard Strong.
Dan Watkins, representing the applicant, stated the application meets all the state and federal requirements to allow a sand dredging company. This type of use requires the mining of natural resources which is sand and is found by rivers. River dredging has been going on for several decades. This CUP would change nothing. The traffic pattern wouldn't change nor the amount of traffic. The fact is nobody has found an instance where a sand pit has contaminated an aquifer or a public water source. Sand is a great water filter and used for many city water supplies. The concern is salt and nitrate. Salt comes from roads and runoff. The roads in this area are not typically salted. But that is the reason for berms. Nitrates come from fertilizer. This whole valley is fertilized. Again there have not been instances cited where water supplies have been affected. These types of sandpits have been much closer to developments and city water supplies with no incident. Watkins explained the dredging process is slow. Much of the land can still be farmed as the dredging occurs one phase at a time.
CL Maurer, LandPlan Engineering, explained the dredging and reclaiming process and phases for the project.
Flory asked what size the lake will be. Maurer estimated about 200 acres.
Thellman asked if there will be a berm around the perimeter of the lake. Maurer replied "yes." Thellman asked then how many feet down before you hit water. Maurer replies 12-15 feet.
Thellman asked if pits are ultimately used as recreational lakes, how access to the lake is accomplished when the water level is so far below the land surface including the berm. Maurer replied docks will need to be built similar to Lake Shawnee.
Gaughan stated one of the conditions proposed at phase 21 is to work with the Corp of Engineers to either maintain the wetlands or mitigate them elsewhere. Is it your choice to mitigate or change the wetlands1/2 Maurer stated "yes." Maurer showed photos of other reclaimed sandpits where development, which includes roads, housing additions and a school, developed adjacent to the sites.
Thellman asked if the sandpits shown were on top of an aquifer resource. Maurer replied, "Yes."
Merhard Givechi, consulting traffic engineer, stated the approval of the CUP would not be adding any additional traffic to what is existing now in and out of the development site. The truck route from the site, g s south on Noria Road, east on old K-10, and south on Douglas County 1057 to the interchange of K-10, and from there to Kansas City. The same route will be used back to the site. The traffic study recommended that the applicant make the following improvements: 1) realignment of access point at 1500 Road to the west, lining up to make a four-way intersection. 2) pave 100 feet of the access point to the north of 1500 Road to stop tracking gravel to the main street on 1500 Road; 3) improve the pavement at the intersection on 1500 Road because of heavy truck traffic coming in and out of the site; and 4) to provide a dedicated east bound right turn lane on Old K-10 at 1057. Under the existing conditions, without the improvements, there seems to be no traffic or safety issues. However, the applicant has agreed to make the improvements regardless. The two concerns from KDOT have already been clarified.
Phil Struble, Landplan Engineering, discussed how the dredging process in the Kansas River has been ongoing since the 1960s and g s clear down to bedrock. Sand dredges to 60-70 feet. So according to Struble, the aquifer has been exposed to sand dredging for 50 years. Farmland Industry would withdraw 3.2 million gallons of water a day out of the aquifer. During Farmland's operation, our river fed the aquifer and water didn't flow into the Kansas River until their operation ceased. Now it is based on the water level of the river.
Struble addressed the ground surface runoff concern. The planned dredging is 7,000 feet from the nearest City of Eudora water well. Because the sand filter contact is measured in hours, if the water in the ground moves one foot per day (at 7,000 feet), we have 30 years worth of trickling sand filtering for any surface runoff. He feels the sandpit would provide a superior level of surface water filtration.
Thellman stated her concern about exposing the layer of soil made up of sand and gravel and boulders that allows water to move more quickly and not receive the same filtration. Struble stated it's not just the sand that filtrates and treats the water, but the total lack of sunlight and oxygen underground will cause any micro organisms to die and dissipate. That science is used in almost all KDHE regulations when it comes to sand.
Struble discussed concerns that fast moving water could cause a ravine to create a knick point which in turn could cause the river to relocate. His argument to that concern is the applicant is dredging a 70-foot deep knick point, which has been there for 50 years. The applicant has spent a long time armoring the back to ensure the nick point won't move. In 50 years we've had several significant storms and opportunities for the river to go over the bank and it hasn't moved yet. There is no reason to think that just because we have a sand pit 300 feet from that point it's going to automatically increase the chances of the river moving.
Thellman asked if there has been river dredging along that area where the Wakefield North Channel Map shows the 2004 cut through, why d s the channel go through at that point where the island is located and was there dredging there. Struble stated as long as he has been involved in this project, since 1991, that island has been there since the engineers have been shooting cross sections. He cannot confirm if there has ever been dredging in that particular location.
Struble went on to say the area residential wells have livestock pens, fertilizer storage, seepage pits, and waste water systems in their vicinity with a 400 foot requirement. The sandpit is 1200 feet from the nearest residential well. Basically he said the pit will have less of an impact then the surrounding neighbors will on residential wells. Last, KDHE requires the regulation to put berms around the pit to protect ground water from surface water runoff. A berm is the easiest way to accomplish that. As long as the berm is constructed to block the surface runoff, there is no way any other source of pollutants can get into the pit. In all the dredging projects (from Salina to Kansas City) Landplan has been involved in, there has been no indication anyone has ever had a ground water issue with the drinking water from those sand pits.
Thellman questioned how fast and how far pollutants can travel through the aquifer and from the sand pit. Struble said your idea of rapid is two feet a day, which would take15 years for the water to travel from the intersection of Noria Road and 15th Street to get to the Eudora wells. The pollutants cannot and will not survive that length of time.
At 8:40 p.m., the Board took a 10 minute recess. The Board returned to regular session at 8:50 p.m.
Struble addressed Thellman's earlier question of when the cut through on the Kansas River occurred. He stated the 1951 flood caused the cut through and that particular location has not been dredged.
Carl Nuzman, Consulting Engineer and Hydro Geologist, stated we have been dredging sand from the Kansas River for 100 years. He explained the river dredging process and also how reservoirs stop water flow and ruin lakes and water quality. He believes dredging from rivers cause very minor impacts on the water supply. It's reservoirs that cause water degradation.
He discussed river water quality. Flood water looks muddy, but it is not a contaminant from a mineral standpoint. The microorganisms will die off due to lack of sunlight. He was a consultant for the Olathe Well field. The wells were within a few hundred feet from the sandpit. His recommendation when working on the project was to allow 500 feet. However, there has never been any contaminant detected.
Thellman asked if the land around the Olathe wells is farmed. Nuzman said much of the area is farmed.
Thellman asked if it is known what effect pumping from other large wells, combined with the sandpit, referencing Wholesale Water District No. 25 and the old Farmland Industries' water wells, now owned by the City of Lawrence. Nuzman responded he d s not know.
Nuzman went on to say Eudora's main potential contaminate is within 750-1000 feet of their wells. They have a draw down and the water within that circle is pulled into the well. About 600-700 feet from the No. 6 well is livestock feed yards. This represents potential pollution. Nuzman stated you don't want flood storm water moving from a lot like this. Berms placed around the pit would keep stormwater from running to the pits.
Thellman asked if Nuzman has concerns that chemicals in top soils will be pushed into the pit after each phase. Nuzman responded he is also a farmer and when you till soil it is exposed to sunlight and aeration. UV sunlight breaks down most of the compounds. Contamination is a result only when you use ditch irrigation or excessive amounts of water or fertilizer. He showed a photo of a lot with an old windmill which has a septic tank close by. Septic systems and abandoned wells can create contamination. Nuzman feels the City of Eudora should be concentrating on these possible water source contaminates. The pit forms a natural water filter over time, organic material and leaves accumulate and form a liner; and over time become a perfect filter.
Thellman asked how Nuzman accounts for his scientific view that there is no impact of this sandpit on the Eudora water wells and it's not even in the capture zone according to your calculations, but we have other scientists that would dispute that. Nuzman replied he has done a great deal of research and has 40 years of experience on this issue. He said in some of the literature you will find there is a land fill in a sand pit that had chlorine and bad household chemicals and was bad in the aquifer. But, after 1-2 miles there was enough recharge that diluted the chemicals. He named several other instances where contamination diluted.
Thellman asked if there is absolutely no risk. Nuzman replied the risk is less than 1%. You can't account for a train derailment carrying a tank of fuel. Under normal circumstances contamination is not going to happen.
Thellman asked about the Corp of Engineer's permitting status. Watkins replied the Corp d s not permit off river dredging. They would have jurisdiction over wetland treatment. But they don't regulate off river. On river dredging is more efficient and less costly than off river dredging.
Thellman asked if Penny has an application in process for on river dredging. Watkins said they will probably develop one and have the Corp evaluate. Right now the Corp has suspended permits for this area of the river effective the end of 2012.
Thellman asked as of December 31, 2012 if the dredger will be pulled off the river regarding the Commission's decision or can the dredger be provided an extension. Watkins stated an extension is uncertain, but the notice has been given the permits are to be suspended. Thellman stated there is an active application for river dredging for the future by Penny. Watkins stated that is correct. Thellman asked if all river dredging is suspended. Watkins said "no" but it has been scaled back. It will be more regulated and harder to get a permit. Thellman asked if Penny was able to get a river dredging permit in the future if they would pursue that. Watkins stated "yes" it is a more cost effective option. In the conditions Mary Miller proposed, Penny would not be allowed to dredge on the river and on land. Thellman asked if the preference is "on river." Watkins answered "certainly." Watkins added the Health and Environment, Water Resources and others who regulate this. There couldn't be off river sand pits if people perceived there to be any significant risk of polluting water sources. There are regulations to prevent it. While there is fear from neighbors when you have a quarry, the fears don't get realized by large and that's why you don't get damages from it, though you do carry insurance.
Gaughan asked what the process is if damage occurs. Watkins stated if contaminants are detected in a monitoring well or water coming from the well field in Eudora you'd want to determine where it came from. That d sn't mean it would come from Penny's operation. Watkins stated that is why you have monitoring wells to determine if something is coming out of the pit. If you find something, a Conditional Use Permit is reviewed every five years, but subject to review at anytime if an issue comes up in a monitoring well.
Flory feels it is critical that any condition the Commission intends to review be clearly stated. Watkins stated you cannot totally define what it is that would cause you to suspend or revoke a permit. Flory stated his concern is being able to bring the CUP back for hearing in the very unlikely event there is an issue.
Gaughan opened the item for public comment.
Carl McElwee, 1564 E 1850 Road, stated he is also a ground water professional and is also representing the neighbors. He feels the applicant commenting that pit mining is highly regulated is not a true statement. McElwee feels three test wells will give very limited information. He said there is lack of regulation on sand pits. If he were to go to the river valley and drill a 2-4 inch well, he would have to seal it against surface runoff or risk the well being polluted. The pit proposed has about a 3-mile perimeter and has no seal. There is no regulation by any state agency to prevent pollution getting into the sandpits. He d s not believe the area has been mined since the 60s. He believes mining began in 1991. He said he can provide many examples of where surface water has contaminated aquifers particularly with nitrate. Farmers use anhydrous ammonia on cornfields which is a source of nitrate. So he feels the berms have to be maintained forever, even after Penny's work is completed. He feels the possible contamination concern will continue. McElwee said he submitted information to the Commission showing the overburden is 20 feet thick with 40 feet of sand and gravel at the bottom. The applicant will only reclaim about one-third of the soil. He also stated concerns that the static water level will be approximately 25 feet below the surface to the water table which will cause a large drop to water from the berm.
McElwee also stated concerns about the increase in traffic in front of Building Blocks Daycare Center, which could affect pickups at the daycare during rush hour.
McElwee claims the Corp of Engineers is "throwing Penny off the river" because he feels Penny has violated the guidelines of having a two-foot base-year profile along the river on a five mile average, basically because of the knick point Penny has created. He is concerned another flood like in 1993 creating a new channel causing the knick point to be half mile long, with the river dumping sand at the knick point, would cause river water to mix with the pit. He disagrees with the argument that the lack of sunlight and oxygen kills bacteria. He also disagrees with Struble's statement to Commissioner Thellman that the cut through on the Kansas River occurred because of the 1951 flood. McElwee believes it was caused by the 1993 flood. He also said he is not saying pit mining should not be allowed on the Kansas River but this site is unsuitable.
Gaughan stated he has heard two competing studies claiming west to east movement of the groundwater. He asked McElwee why he believes his study to be correct. McElwee stated because water must flow west to east parallel down the valley boundaries. He disagrees with the contour maps presented by the applicant and predicts water from the pits could reach the Eudora well fields in 5.5 years. His opinion was determined by using hydro geologic concepts. He said we do not have good data out there and therefore cannot predict for certain if the Eudora well field will be contaminated. His opinion is a year study is needed, at great expense, and there still will not be a conclusive answer.
David Waters, attorney for the City of Eudora, stated the city's primary concern is recommending what is best for its citizens and determining if the drinking water will be safe. The City of Eudora has hired its own experts. The Eudora Planning Commission recommends more time to study the issue. The item passed narrowly through the Planning Commission. The City of Eudora has provided letters from professionals, experts and people from the community stating their concerns. The City of Eudora cannot recommend approval of the CUP at this time.
Ned Marks, Geologist representing the City of Eudora, discussed a study in Wichita, Kansas where a sand pit leaked.
Flory asked if the Wichita pit had berms. Marks replied "no."
Marks said he has been involved in the cleanup of two of the worst wells in Kansas. One was contaminated from a nearby well with anaerobic bacteria. They physically had to remove the contamination source and reseal to stop the bacteria from being pulled through the aquifer. According to Marks, bacteria moved three feet in three months. In his opinion he cannot say there will be no affect on the aquifer.
Doug Helmke, Kansas Rural Water Association, said he is a licensed geologist and said the applicant has not provided any data which shows the effectiveness of the many feet thick gravel bed at the base of the aquifer to filter contaminants from water in the proposed pit, nor lack of potential for surface water to recharge the aquifer during periods of high pumpage during the summer months and with high flows from the Kansas River from upstream reservoir releases, or high rainfall events to the west. Exposure of the entire thickness of the aquifer to the surface environment by the proposed pit could create a situation where the City of Eudora is required to treat the ground water they use no differently than if it were surface water taken directly from the Kansas River. In his opinion the CUP should not be granted until research is conducted.
Collin Bielser, representing City of Eudora, discussed three issues and concerns with the Lawrence-Douglas County Planning Staff report: 1) it d sn't distinguish between river dredging and sandpit operations; 2) it d sn't properly consider ground water quality and quantity as a policy consideration 3) and it fails to address important goals and policies found in the comprehensive plan. He opposed approval of the CUP.
John Harrenstein, Eudora City Administrator, stated his concerns that the planning staff report shapes the policy between soil and sand overlooking Eudora's water quality. He believes temporary permits are being issued for river dredging and feels Penny should apply for one of those. Harrenstein said he believes the sandpit will create a risk and asked the Board to consider denying the CUP request, and stating until all research is conducted that shows there will never be any flow of surface water out of the bottom of the pit into the aquifer creating ground water with surface water characteristics at the location of the City of Eudora wells, the CUP should not be granted.
At 10:38 p.m., Gaughan called for the Board to break for 10 minutes (until 10:45 p.m.).
The Board reconvened at 10:45 p.m. continuing public comment.
Scott Hopson, Mayor of City of Eudora, said no one can guarantee that pollution won't affect the wells. If the wells are shut down, there is no way to supply water to the residents. He said when the pit is complete, it will leave a giant hole which may eventually be a recreational lake adding new problems. Hopson asked the Commission to deny the CUP.
David Vertacnik, 1403 E 1850 Road, stated he feels there are other sites that could be available for the sand pit to consider. Our water supply is in question. He asked if the water will stay potable if the pit is breached by a substantial flood and if there a bond to cover this. A potential threat should not be ignored. The location has premium high quality soil and we need to preserve this farmland. He asked the Board to deny the CUP.
Kerri Altenbernd, 431 Forrest Avenue, said ground water concerns him, but he has other concerns. He believes flooding could drastically change the river channel, especially if a pit is there. He is opposed to the CUP.
Jerry Jost, 217 N 5th Street, stated because the pit will be located so close to the river he is concerned that if river cuts across the sandpit it will do more damage than in-stream dredging. He is opposed to the CUP.
Kurt von Achen, 1346 E 2350 Road, said he feels the applicant d sn't take responsibility for the risk. The City of Eudora shouldn't have to pay to correct problems created by the sandpit. So if the County approves this CUP, then the County should accept the risk.
Richard Strong, county resident, stated he is opposed to the CUP. He has concerns about reclamation being unsightly as it will eventually be close to his house. He also stated concerns about accidents on N1500 Road because of water coverage over road.
Dan Watkins stated he wanted to clarify Penny is not having a permit suspended because of their activity. There are stretches in the river that cannot be dredged. He appreciates the City of Eudora and the Water Associations concerns, but that is why we have regulations that are designed for safety. Watkins said we plan a lot in Douglas County; we plan to save soils and have policies north of the river. It is a desired impact in which we are going to try to save as much top soil as possible. There are no guidelines or regulations that prohibit this. In fact they support it. It is one of the few places you have all of the elements where you can have a permit for sand off river. There have been no other sites identified in close proximity that would work like this. The City of Eudora has well head planning that d sn't prohibit this. Our comprehensive plan encourages this. Ask the Board with appropriate conditions to approve the Conditional Use Permit. Watkins confirmed Penny d s have liability insurance.
Gaughan asked Watkins to describe Penny's liability insurance. Watkins responded the liability coverage is $2 million per incident. Gaughan said if something were to occur, Penny would have to be found at fault to collect on their insurance. Gaughan asked at some point is the insurance sufficient. Watkins said "it is."
Gaughan stated when he looks at the studies he sees what appear to be two competing experts. It is difficult to understand who has the better expert. He said what he d s see is the direction of the ground water flow from west to east. What the degree difference is over time and how that changes he d sn't know. What seems clear is it's the southern portion of the sandpit that could cause trouble. Someone wants an absolute guarantee that something can or cannot happen. In scientific discussion that d sn't exist. Gaughan suggested eliminating the southern portion of the pit along the wetlands. Stopping at Phase 21 appears to eliminate the west to east water flow concern. The river d s what it wants. He also suggested expanding the setback from 300 feet to 500 feet, adding extra strength of the bank. Water Resources only requires 50 feet. The Board could make the berm condition permanent following consecutive owners. Gaughan said the discussion at the planning commission was very thorough. Following their train of thought, ultimately if we scaled this back you reduce the risk, whatever that is, based on the information received. He said he d s think we have taken an important controversial stand on the importance of prime soil. We have set aside a considerable amount of that land through our planning process in the northeast sector where there won't be any industrial or mining allowed there. The issue before us is we have both and what do you do. He said he certainly understands the challenges of what could happen here. By reducing the risk, protecting the river and addressing the traffic issue, he could support this.
Flory stated he needs more time to consider this. He feels the applicant owns the property and has a right to use it. There is a lot of material to consider and he is sure his fellow Commissioners have read it also. Flory suggested the Board take the matter under advisement and bring the item back on a future agenda.
Thellman said it is clear we have so much information to consider and two conflicting hydrologists and other varying opinions. Thellman said her inclination is because the Comprehensive plans say we should consider private property rights, but the public welfare must prevail. Her inclination is primarily to be concerned with the neighboring properties but mostly with the City of Eudora and the fact that theirs is the biggest risk. We've been setting this out as a fight between soil and sand but the first thought of the Chapter 16 Environmental Chapter is the protection of water quality and quantity and the especially the protection of public water such as ground water. She feels the priority is to determine the water issue and safety. But because there are such conflicting expert reports she suggested having the Public Works Director locate an outside specialist to review the experts' opinions with an unbiased, unconnected, and disinterested outside consultant.
Keith Browning, Director of Public Works, said he suggested hiring a hydro geologist consultant to review all the material. If the Board wants an opinion on propensity of the river changing, that would be a different expert.
Flory moved to continue the public hearing until January 2, 2013 meeting and asked staff to obtain an expert opinion on the conflicting hydrogeology reports by an independent hydrologist expert; and stipulated the Board is to have no ex parte communications with interested parties. Motion was seconded by Gaughan and carried 3-0.
Gaughan moved to adjourn. Motion was seconded by Flory and carried 3-0
____________________________ ____________________________
Mike Gaughan, Chair Nancy Thellman, Vice-Chair
ATTEST:
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Jamie Shew, County Clerk Jim Flory, Member
Time and Date