Meeting Information
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4:00 p.m.
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders;
(b) Updates to County meals policy (Sarah Plinsky/Jamie Shew)
REGULAR AGENDA
(2) Consider awarding bridge painting contract for Project No. 2013-14, Bridge Nos. 07.83N-17.50E and 19.00N-15.90E (Keith Browning); Backup to be provided at meeting.
(3) Executive Session for the purpose of consultation with County Counselor on matters, which would be deemed, privileged under the attorney-client relationship. The justification is to maintain attorney client privilege on a matter involving Douglas County.
(4) (a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
(c) Public Comment
(d) Miscellaneous
RECESS
RECONVENE
6:35 p.m.
(5) Public meeting for consideration of Agritourism Assembly over 100 person event scheduled for October 5, 2013, at KC Pumpkin Patch in Douglas County, 157 E 2300 Rd, Wellsville, KS. (Linda Finger)
(6) Adjourn
Gaughan called the regular meeting to order at 4:00 p.m. on Wednesday,
September 11, 2013 with all members present.
CONSENT AGENDA 09-11-13
Gaughan moved approval of the following Consent Agenda:
► Commission Order Nos.13-024 and 13-025 (on file in the office of the Clerk); and
► Updates to County meal policy
Motion was seconded by Thellman and carried 3-0.
PUBLIC WORKS 09-11-13
Keith Browning, Director of Public Works, brought the bid opening tabulations results for Project No. 2013-14, Bridge Nos. 07.83N-17.50E and 19.00N-15.90E, for bridge painting. Staff recommends the lowest bid with Lindner Painting, Inc. Browning stated the company was approved by KDOT.
Gaughan opened the item for public comment. No comment was received.
Flory moved to award the contract for Project No. 2013-14, Bridge Nos. 07.83N-17.50E in the amount of $38,140.00; and 19.00N-15.90E in the amount of, for bridge painting in the amount of $82,910.00 for a total cost of $121,050.00. Motion was seconded by Thellman and carried 3-0.
EXECUTIVE SESSION 09-11-13
At 4:10 p.m., Gaughan moved for the Board to recess to executive session for 50 minutes (until 5:00 p.m.) for the purpose of consultation with the County Counselor on a matter which would be deemed privileged under the attorney-client relationship. The justification is to maintain attorney client privilege on a matter involving Douglas County. Attendees included Evan Ice, and John Bullock, Steven's and Brand; Craig Weinaug, County Administrator; and Sarah Plinsky, Assistant County Administrator. Motion was seconded by Thellman and carried 3-0.
At 5:00 p.m., Gaughan moved to extend the executive session for a period of 20 minutes (until 5:20 p.m.). At 5:10 p.m., the Board returned to regular session. No action was taken.
ACCOUNTS PAYABLE 09-11-13
Gaughan moved to approve accounts payable in the amount of $646,391.77
to be paid on 09/12/13. Motion was seconded by Flory and carried 3-0.
APPOINTMENT 09-11-13
Flory moved to place a vote for Richard Malm, Jefferson County Commissioners for the position of Kansas Representative to the Governing Board for the National Association of Counties. Motion was seconded by Thellman and carried 3-0.
APPOINTMENT 09-11-13
Flory moved to appoint Sarah Plinsky to replace Craig Weinaug as the County representative for the DMI Motion was seconded by Thellman and carried 3-0.
RECESS 09-11-13
At 5:29 pm took recess until 6:35 p.m.
RECONVENE 09-11-13
The Board returned to Regular Session at 6:35 p.m.
AGRITOURISM/ZONING & CODES 09-11-13
The County Commission held a public meeting for the consideration of an Agritourism Assembly over 100 persons event, scheduled for October 5, 2013, at KC Pumpkin Patch in Douglas County, located at 157 E 2300 Road, Wellsville, Kansas. Linda Finger, Interim Zoning & Codes Director, presented the item.
Events with more than 100 people must come before the County Commission for review and action. Regulations for agritourism uses are contained in two pages of the zoning regulations 12-319-7. Finger clarified the Special Event Permit, Conditional Use Permit and Site Plan requirements do not apply here. Applicants must, however, meet the requirements in the "A" Agricultural zoning district. Finger presented the review comments received from KDOT today were from both Districts 1 and 4. A new entrance permit to widen the existing field entrance was required. KDOT also had concerns about the proposed use and wondered as the similarities of this with the Louisburg Cider Mill on K68, which created traffic problems. Acknowledging the similarities roadway construction between K-68 and K-33, they thought a traffic study may be necessary, but didn't have enough information about the proposed use to say for sure.
Flory clarified before carrying out the activities described; the applicant would need a revised access permit for K-33 and all that might entail. Finger confirmed that.
Flory asked if there are any existing structures or residence on the property. Finger replied "no."
Gaughan asked what distinguishes "A" zoning from commercial or a business zoning. Finger replied the "A" agricultural district was created for agricultural and farming activities including rural residential uses. Ag-related activities are permitted, which may include sales of farm produced products on-site.
Flory stated when dealing with agritourism, there are certain activities that can be carried out on agriculturally zoned property that do not require a permit, like a road side stand. Finger responded that agritourism registration is not required to sell produce from a road-side stand if you raise the produce yourself, selling milk and eggs for example. If an owner wants to generate additional income from ag-related activities that are more of an economic development activity, registration with the state and county are required.
Gaughan asked when home residential businesses on agricultural land become a commercial enterprise. Finger described the three types of home businesses, the number of employees permitted and the building area (sq. footage) permitted with each. The type 3 home business regulations were designed to redirect those activities to commercial/industrial zoning in the county.
Thellman asked what distinguishes an agritourism business. Finger's response was that the agritourism option is tied to local farmers wanting to use their land and create products to sell, providing them with an additional income source.
Gaughan stated the County has in the past allowed permits for haunted houses or mazes. Finger stated those now fall under the Special Event Permits, which must be applied for annually. They can be administratively approved.
Curtis Holland, Polsinelli Law Firm representing the applicant, stated Kirk and Julie Berggren owns KC Pumpkin Patch located near Gardner, Kansas. The Berggrens received approval for agritourism for their proposed site in Douglas County from the state of Kansas. Holland said the Berggrens are farmers, though they live in the city, they have farmed this property for the past four years. Their business in Gardner is wholesome, family farm activities. He said the Commissioners have received correspondence stating otherwise. Ninety-five percent of the activities are during the daytime hours, most during the weekends, and weekdays during the months of September and October. The operation in Gardner and farming started out as a 'you-pick' pumpkin patch with their biggest clients being school children. They have added hayrides, corn mazes, haunted maze, fishing pond, pumpkin tetherball and many other wholesome family fun activities. Before the Commission tonight is a request for registration for agritourism. According to Holland, there is no regulation they need to conform to in respect to agricultural activities. The state of Kansas in 2011 wanted to promote agritourism to bring families back into agriculture and educate children on farming. Douglas County is cutting edge on agritourism. He understands Douglas County's ordinances to allow registration and the applicants' uses are identified in the list of allowances. According to Holland, the Berggrens are doing no more than what is allowed in the resolution. What triggered this public hearing are events where the applicant anticipates more than 100 people at an event. The applicant is registered for 'you-pick' pumpkin, bird watching and fishing pond activities.
Holland stated unfounded comments have been submitted against the Berggrens about their current location. He responded by reading positive comments from Gardner neighbors in favor of the business. He commented that police officers are hired for security for the haunted maze night time activity. He read a statement by the Gardner Police Department that no incidents were reported this past year. Holland also submitted a comment from the Johnson County Sheriff's office that there were no reported incidents at the Gardner location. Holland said this is an administrative permit and as long as the applicant d s what is permitted under agritourism, they are entitled to the registration.
Flory stated agritourism is not a new topic of discussion by this Board. Part of the disagreements during the amendment development process was over this Commission losing oversight of activities that might have been agritourism, but moved to more and more commercial. Flory stated the Board all support agritourism, but want assurance the activities permitted in an agricultural district do not get to the level of commercial activity in which noise, traffic and disruption of agricultural lifestyle takes place. Flory said he wants this Commission to continue to have the oversight to avoid "mission creep", which could occur with the discussed corn maze, haunted maze and other suggested activities. Flory added the State's registration process d s not impress him.
Holland stated he agrees with Commissioner Flory's concerns about needing oversight. He said the applicants are subject to your regulation. The fact that they are registered d s not mean they can do whatever they like. Flory responded he trusts if the Board gets to the point of final approval there may very well be conditions attached. Holland said as a legislative body, he will not question the Commissions' authority to attach conditions.
Thellman asked what agritourism plans the applicants have for the 25,000 square foot building and 800 space parking lot shown on the site plan. K. Berggren, applicant, said the building would be used to store equipment, for selling concessions and for customers to get out of the sun. It will meet all codes. The building will be a Morton type building and probably not 25,000 square feet.
Gaughan asked if the building's site plan would come back to this body. Finger said a site plan is not required, but as part of the building permit application, plans will be submitted. These will not come back to the Commission.
Gaughan asked at what point d s a 25,000 square foot ag-building with a concession area become a commercial enterprise or require a business zoning as opposed to an agricultural zoning. Finger responded there are agriculture buildings in the county with 25,000 square feet. The uses of the building will be evaluated when building plans are submitted and the building code will evaluate what standards apply base on the uses in the building.
Flory stated large assemblies may not be a part of the Berggren's plan now, but may be in the future. At that point, Flory said he would like to see the applicant come back to the Board with more specifics addressing health, safety and facilities.
Gaughan said it is his understanding the petting zoo, haunted maze, and other uses will remain at the Gardner site. Holland said that is correct for now. Moving those items would require amendments to the registration. Routine amendments would not come back before the Board.
At 7:45 p.m., the Board took a five minute break.
The Board returned to regular session at 5:50 p.m.
Holland played a video describing the activities at the KC Pumpkin Patch.
Flory asked if the applicant carries liability insurance. K. Berggren responded "yes" several million dollars.
Gaughan opened the item for public comment.
Jim Hendershot, 175-B E 2300 Road, Wellsville, stated agritourism is based on the protection of businesses trying to sell products raised on their property. The Douglas County resolution states agritourism is sustaining the family farm. Hendershot said he concerned about insuring the public health, safety and welfare are protected. In his opinion, the pumpkin patch may fit the broad definition of agritourism, but he feels the intent of agritourism was not to allow a commercial business to operate under the disguise of agritourism therefore exploiting agritourism. His is concerned the applicants intend to relocate the Gardner KC Pumpkin Patch activities to the proposed site in the future though the current registration lists pumpkin picking, bird watching and fishing. The site plan shows the parking lot having 804 spaces for cars and 16 for buses which equals 8.5 football fields. He asked why so many spaces are needed for pumpkin picking, fishing and bird watching. Hendershot listed erosion control issues, dust, trash, traffic and noise as potential problems. Property owners within 1,000 feet of property have signed a petition against the application. Hendershot showed a KC Pumpkin Patch video that mentioned yearly expansion, with a goal to expand to 100,000 customers. Hendershot stated he feels there should be a total review of Douglas County agritourism permitting.
Kim Hendershot, 175-B E 2300 Road, Wellsville, asked the Board to deny the agritourism permit application. She questioned why a dog kennel must go through a CUP process with a two-year review, but a pumpkin patch with a circus atmosphere d s not.
Steve Devore, Gardner Area Chamber of Commerce, stated he is sad to see the KC Pumpkin Patch leave the Gardner area, which transpired because of the BNSF intermodal park. The Chamber has worked with the KC Pumpkin Patch for several corporate events. They have always had a positive partnership with the community. He feels the new location will offer new exposure for Wellsville and Baldwin. Devore asked the Board to consider approval of this application.
Jeff Robertson, 4762 Highway K-33, stated concerns about the pumpkin patch affecting already heavy traffic along K33.
Kim Allen, 19535 S Waverly, Gardner; stated she lives near the existing KC Pumpkin Patch. She feels the proposed neighbors' fears are not founded. There has never been an issue at the present location with traffic backup. Allen feels the operation is a wonderful opportunity for families to visit.
Bill Hogan, 138 E 2300 Road, Wellsville; stated concerns about the number of accidents along K33 in the proximity of the proposed pumpkin patch site. He feels K33 is not capable of handling the additional traffic this business would incur.
Arleen Schuman, 134 E 2300 Road, Wellsville; stated her main concern is
the noise this business will generate. She is afraid her rights for a peaceful, quiet, rural life will be infringed upon. She asked the Board to deny the application.
Dave Moore, 559 E 2200 Road, Eudora; stated concerns about the intermodal increasing traffic along 2200 Road and south of the proposed location. He asked the Board to deny the application at least until a traffic study can be done.
David Meditz, representing MM&S Investments, 12801 Sewell, KC, KS; said he questions the applicant putting a 25,000 square foot building on his site plan and then saying the size was a mathematical error. He stated he would not invest in the area until he sees how this application plays out.
Michelle Koos, 2285 N 200th Road, Wellsville; stated she is opposed to the request for a Special Use Permit. She stated concerns for public safety specifically along K33 because the road has no shoulders, drop-offs and sight restrictions. She stated concerns about crime encouraged by a large number of attendees for this type of business which may include pedophiles. She also mentioned a trespassing issue involving the KC Pumpkin Patch which was reported to the Gardner Police Department. Koos said this is a commercial business attempting to do business under the blanket of agritourism in an area not appropriate for the current land use of the surrounding area.
At 9:13 p.m., the Board took a ten-minute break and returned to session at 9:28 p.m.
Renee Weeks, 165 E 2300th Road; said she agrees with what her neighbors have said. She showed photos of the proposed parking lot adjacent to her property. Weeks feels her family will be affected by the noise, teenagers, lights and horns. She is afraid for her children play outside so close to a busy parking lot, which would be the size of Wal-Mart's.
Russell Koos, 2285 N 200th Road, read a list of attractions currently at the Johnson County location which he feels will be relocated to the Douglas County site. He asked if the Board members would want this near their homes. Koos also listed vehicle runoff as a concern.
David Dwyer, who resides a quarter mile south of the proposed site, stated the applicants are not farmers but entrepreneurs. He pointed out the applicants don't grow all their pumpkins, but buy them from wholesalers and resell them.
K. Berggren responded there are 804 parking places because the lot allows for that many. He feels the grass will reduce erosion. The Pumpkin Patch is only open one month out of the year. There should be no problem with dust, but he is willing to put down calcium chloride if necessary. Trash will be taken care of. Regarding the pedophile issue, if a child is lost on the property, gates are shut and staff looks for the child using radios. No one leaves until the child is found. Berggren addressed the trespassing issue brought up by Koos. Berggren stated the incident was regarding his own son on the pumpkin patch property, so the call from the neighbors was cancelled. There was no police record of the incident. Berggren said the Fear Farm was added as his children grew older to give that age group something to do. If he moved the Fear Farm to the Douglas County location, houses would not be visible from the southwest corner where it would likely be located. He plans on adding a row of trees and a fence to block noise and site. He said the Pumpkin Patch is not a year around 800-car operation, though he wished it could be. His largest day brought in approximately 450 cars.
Flory stated there seems to be some major disconnects in the facts regarding the level of activities proposed for the site and the hours of operation. Flory said he didn't know the Gardner location would be closing down and asked for clarification. Berggren stated that is correct.
Flory asked if Berggren plans to move the majority of the Gardner business to the Douglas County site. K. Berggren responded his plan is to move most of it. He is still debating on what would be a good fit because the new location is narrower than the current site. He has met with Linda Finger on the requirements. The pumpkin patch falls under the provision.
Julie Berggren, applicant, stated they are not allowed under the state of Kansas Agritourism Department to add anything that is not operational. Therefore, she could not add a corn maze because the business is not in operation. Once they open, they can legally add activities.
Flory stated that is problematic for Douglas County, because the state of Kansas (agritourism) registration is a statistical thing. When it comes down to the nuts and bolts of how it works in a community, that's not the State's goal; and if it is, they are not doing it.
J. Berggren stated they know what the agritourism law is and if it is not what people want, they would speak to their law makers. She feels they have followed the law.
Flory stated during the course of agritourism discussions for the county resolution, he had serious concerns with some of the activities that might be considered agritourism. This application, unfortunately, brings to the floor his earlier concerns when a CUP would be more appropriate, because the County has oversight and can set conditions.
J. Berggren stated they just did a CUP at Gardner where they have been for 11 years and no one protested their operation and every commissioner voted in favor. Flory responded that is one area of which he is not familiar. This is another area and the Board has to be concerned about this area. Flory stated he got the impression this pumpkin activity would be in the daytime and then he sees the night time activities, which raises issues of traffic safety, lights and noise. He is not sure what the Board is considering.
J. Berggren stated what are considering today is the you-pick pumpkins, fishing and bird watching, day hours only. In the future, Berggren stated they plan to move their operation to Wellsville. The hours of operation will be 9 a.m. to 3 p.m. Monday through Thursday. In Gardner, they are open 9 a.m. to 6 p.m., Saturday 10 a.m. to 6 p.m.; and Sunday noon to 6 p.m. There are no nighttime hours at this point.
Gaughan clarified the registration form statement of anticipated attendance for the entire September through October time frame is 1000 people, with no more than 200 in a 24-hour period for the 'you-pick' pumpkins, fishing and bird watching. J. Berggren responded that pis correct.
Based on this, Gaughan asked for additional clarification as to when the 12-15 assembly events of more than 100 people would occur; was that only in September and October1/2 K. Berggren responded that was correct; it equals about two assembly events per weekend.
Gaughan asked about the remainder of the year, would they be open for fishing and bird watching1/2 K. Berggren replied that is correct.
Gaughan stated it is clear from the application the events listed are daytime uses. It is clear the after-hour events at the Gardner location are not part of this application. Another part of our agritourism code states the Board can impose conditions in conjunction with the approval of the assembly type use which is 100 or more in attendance. It is these types of events that cause the noise and traffic concerns. He questioned the intent of 804 parking places and a 25,000 square foot building, but confirmed the applicant says 1000 people total for the entire month.
K. Berggren stated when filling out the original application he didn't understand the 100 people concept. He assured the Commission the 'you pick' pumpkin patch will not generate that much traffic.
Flory said he is struggling with this item, because it appears the application may fall within agritourism; a place for kids to pick pumpkins, watch birds and fish. He is troubled by this being a legitimate business interest the applicant wants to grow and take on additional activities. He struggles with that being agritourism. Flory stated he may feel comfortable with this nominal level of activity, but won't be comfortable with the later level. Flory said he has to consider if that is fair to the applicant to let them get their foot in the door and then slam the door in the future. Second, he questioned if the County's regulations are set up well enough to provide adequate oversight and conditions to ensure the concerns of the constituents are addressed. Flory said that this is his dilemma. What is on paper tonight seems to fall within what he considers agritourism, but not commercial ventures that should be subject to Conditional Use Permits with heavy activity and so much noise, dust, and traffic that it disrupts the agricultural area.
K Berggren added they plan to make sure the business is in compliance with all codes in Douglas County.
Gaughan stated items listed on the application tonight do meet our agritourism. The additional uses that concern the neighbors don't appear to meet the agritourism definitions as the County has in our statutes. The fact is the applicant will have to revisit any additional activities with the Board and the state. Gaughan said the applicant will also have to revisit them with their neighbors who have raised significant concerns about these issues.
K. Berggren said he was asked to come to a group meeting. He offered to meet individually with anyone concerned but he didn't feel comfortable meeting with a mob.
Gaughan stated assumptions have been made by people on both sides. You have good neighbors and if this moves forward, you want to keep them as good neighbors. What is outlined on the application fits. Gaughan said he is not prepared to hammer out detailed conditions tonight.
Flory agreed with Commission Gaughan that if the Board is going to take a vote, it should be on something precise. If the Board is going to approve this application, it should be with conditions that protect some of the concerns heard tonight, hours of operation and buffering.
Thellman asked if it would be appropriate to clarify the size of the building and the number of parking places be "right sized" for the planned operation, instead of presenting the maximum possible. K. Berggren replied he is not setting up a 25,000 square foot building now and the parking lot d sn't need to be that large. Flory said a condition of approval might be that any structure that is erected on this property in conjunction with the activities would require approval. That could be a condition that would require the applicant to come back before the Board.
Holland said a farm is allowed to have an agricultural structure on it. He said he d sn't even know if that is an issue for the registration. Flory responded what is allowed on a farm is an agricultural building. The applicant stated the building in question is going to be used for concessions. Holland replied pumpkins are an agricultural operation and you can have a barn structure in connection with an agricultural operation. Flory stated he understands that.
Flory stated he is not prepared to vote to approve the application as it is without conditions. He feels it would be in the best interests of the applicant and the community for the applicant to work with staff to fashion conditions that can be brought before the Commission and considered for approval.
It was the consensus of the Board for the applicant to work with staff to prepare conditions intended for the application to come back before Commission on September 25, 2013 for consideration and final action. Among those considerations would be a permit application to KDOT for a District 4 entrance change.
PUBLIC COMMENT 09-11-13
Bob Scott, 124 E 2300 Road, Wellsville, stated said this applicant has a good business but it is not appropriate for a rural residential living community.
Jim Hendershot asked for clarification on the process if the application for agritourism on this site is approved. They were told by staff this was the only opportunity the neighbors would have to address the Commission.
Finger said the regulations state for assembly over 100, there is a public hearing the first time. Based on the Board's discussion during adoption of these regulations the public hearing was once during the approval period of the registration form. The regulations are unclear on if/when a registration form is amended would the applicant need another public hearing.
Hendershot explained they were under the impression this was a one-time event, which was what led to the neighbor's presentation tonight.
Gaughan stated when the uses change; the applicant will be asked to come back to the Board for approval.
Linda Finger, Interim Director of Zoning and Codes, clarified that Hendershot asked staff how often an item will come back to the Board for an assembly over 100 people. Finger stated it comes before the Board for the first event only. Flory stated the Board can put a condition on the initial approval that once an agritourism application is amended the applicant must come back before the Board for approval.
Flory stated he understood Mr. Hendershot's concerns and what Linda told them was accurate based on what is written. The Board put a condition on the approval that they come back. It may be that an amendment is needed to our regulations.
Gaughan moved to adjourn the meeting; Flory seconded and the motion carried 3-0.
____________________________ ____________________________
Mike Gaughan, Chair Nancy Thellman, Vice-Chair
ATTEST:
____________________________ _____________________________
Jamie Shew, County Clerk Jim Flory, Member
Time and Date