Meeting Information
4:00 p.m.
-Present Kansas Association of Counties certificates
-Consider approval of the minutes for November 20, 2013
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders;
(b) Consider acquisition of easements for Channel Restoration Project at Bridge No. 5.54N-17.50E (Michael Kelly);
(c) Consider approval of the 2014 Douglas County Holiday Schedule;
(d) Consider approval of Cereal Malt Beverage License for Flamingo Enterprises (Clerk's Office); and
(e) Consider approval of Cereal Malt Beverage License for The Clinton Store (Clerk's Office).
REGULAR AGENDA
(2) Public Hearing for approval of amended 2013 County Budget (Craig Weinaug)
(3) Consider approval of a Home Rule Resolution placing a temporary moratorium on large wind energy conversion systems.
(4) Executive Session to discuss matters relating to county building security measures pursuant to K.S.A. 75-4319(b)(13). The justification is because discussing these matters in open session would jeopardize the safety and security of county buildings and their occupants.
(5) (a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
(c) Public Comment
(d) Miscellaneous
RECESS
RECONVENE
6:30 p.m.
(6) Regular: CUP-2-1-10: Consider a Conditional Use Permit to allow seasonal camping accessory to farm operations, on approximately 12 acres, located at and adjacent to 1480 N. 1700 Road. Submitted by Natalya Lowther, property owner of record. (PC Item 4; denied 5-4 on 11/18/13) Mary Miller will present the item.
(7) Adjourn
Gaughan called the regular meeting to order at 4:00 p.m. on Wednesday,
December 11, 2013 with all members present.
MINUTES 12-11-13
Flory moved to approve the minutes of November 20, 2013. Motion was seconded by Thellman and carried 3-0.
CONSENT AGENDA 12-11-13
Flory moved approval of the following Consent Agenda:
- Commission Order Nos.13-041and 13-042 (on file in the office of the Clerk);
- Acquisition of Easement for channel restoration; Project No. 05541750 Channel; Road No. 51-I (E1750 Road); Tract No. 1 for W. Shawn and Lisa G. Smith, Baldwin City, Kansas;
- Resolution 13-34 granting a Cereal Malt Beverage License for Flamingo Enterprises/The Bird of 1626 E 1500 Road, Lawrence; and
- Resolution 13-35 granting a Cereal Malt Beverage License for The Clinton Store, 598 N1190 Road, Lawrence.
Motion was seconded by Thellman and carried 3-0.
DOUGLAS COUNTYHOLIDAY SCHEDULE 12-11-13
The Board considered the approval of the 2014 Douglas County Holiday Schedule. Flory asked staff to look into what it would cost to add Veteran’s Day as an employee-paid holiday.
Ken McGovern, Douglas County Sheriff, stated he would like to see Douglas County closed holidays consistent with what the City of Lawrence and State offers.
It was the consensus of the Board for staff to determine the cost of adding Veteran’s Day to the Douglas County Holiday Schedule and to research if the Treasurer’s office has a higher than normal turnout on open holidays. The item was tabled for next week’s agenda.
2013 BUDGET 12-11-13
Flory moved to open a public hearing to receive public comment on the amendment of the 2013 County Budget. Motion was seconded by Gaughan and carried 3-0.
No comment was received. Flory moved to approve amending the 2013 Budget, which included the following five funds:
Road & Bridge Fund to allow additional year end transfer of $365,000 more for gasoline tax; Ambulance to allow additional year end transfer in the amount of $340,000 in fees; Emergency Telephone to allow additional year end transfer in the amount of $325,000 from the closing of the Emergency Cell Phone Fund in 2012; Grants Fund to allow for the expenditure of grants; and Special Parks and Recreations to cover costs for the remodeling of the marina. Motion was seconded by Gaughan and carried 3-0.
MORATORIUM 12-11-13
The Board considered the approval of a resolution placing a temporary moratorium on large wind energy conversion systems.
Flory stated he thought Douglas County had regulations for wind energy devices, but learned there are none. He feels the Board needs clarification and appropriate time to review what impact this could have on the unincorporated area. He supports the resolution.
Thellman agreed the moratorium is a reasonable move. She asked if the resolution applies to private systems on roof tops and wind energy systems, or is it limited to large commercial models. Flory responded any existing facilities would be grandfathered in. Gaughan responded the moratorium will apply to large systems. He stated he wants to see Douglas County be a part of the growing wind energy movement in Kansas and wants the zoning regulations to be a positive document.
Flory moved to approve Home Rule Resolution 13-12-5 placing a temporary moratorium on large wind energy conversion systems. Motion was seconded by Thellman and carried 3-0.
EXECUTIVE SESSION 12-11-13
At 4:30 p.m., Gaughan moved for the Board to recess into executive session for 30 minutes (until 5:00 p.m.) for consultation with the Board’s attorney to discuss matters relating to county building security measures pursuant to K.S.A. 75-4319(b)(13). The session is justified by the fact discussing these matters in open session would jeopardize the safety and security of county buildings and their occupants Additional attendees included: Craig Weinaug, County Administrator; Ken McGovern, Douglas County Sheriff; Jim Martin, Under Sheriff; Captain Doug Wood, Sheriff’s Office; Evan Ice and John Bullock, County Attorneys. Motion was seconded Thellman and carried 3-0.
At 5:00 p.m., Gaughan moved to extend the executive session an additional 15 minutes (until 5:15 p.m.). Motion was seconded by Flory and carried 3-0.
At 5:15 p.m., the Board returned to regular session. No action was taken.
ACCOUNTS PAYABLE 12-11-13
Gaughan moved to approve accounts payable in the amount of $601,950.15 to be paid on 12/12/13; and payroll in the amounts of $782,273.75 paid on 11/26/13 and $871,126.83 paid on 12/12/13. Motion was seconded by Thellman and carried 3-0.
RECESS 12-11-13
Gaughan moved to recess until 6:35 p.m. Motion was seconded by Flory and carried 3-0.
RECONVENE 12-11-13
The Board returned to regular session at 6:35 p.m.
PLANNING 12-11-13
The Board considered CUP-2-1-10, a Conditional Use Permit, to allow seasonal camping accessory to farm operations, on approximately 12 acres, located at and adjacent to 1480 N. 1700 Road. The application was submitted by Natalya Lowther, property owner of record. The Planning Commission forwarded the item to the Board of County Commissioners on November 18, 2013 with a recommendation for denial on a 5-4 vote. Mary Miller, Lawrence-Douglas County Metropolitan Planning Staff, presented the item.
Miller stated Lowther applied for a CUP in 2010 to use her property as a camp site for employees to work on the farm. The application was deferred by the Planning Commission. The applicant pursued an option provided in Section 12-306-2.17 of the Zoning Regulations which allows for mobile homes for employees on the farm as a permitted use in the A District. The director of Zoning and Codes at the time determined Lowther’s request would not apply in this case. Lowther appealed the decision to the Board of Zoning Appeals which upheld the director’s interpretation. Lowther has now registered under the agritourism designation and all agritourism uses have been removed from the CUP application leaving only the camping use. She mentioned that the applicant requested that properties addressed as 501 North Street and 1478 N 1700 Road, be added to the CUP request as Lowther has recently purchased these lots.
Miller described the conditions suggested by staff and considered by the Planning Commission. Discussion of facts and conditions included the following: there is floodplain on the subject property; the land cannot be used as a commercial campground; if approved, the camping would be seasonal, March through November; not for profit; and only on that portion of the farm that is north of the north property line of 1480 N 1700 Road. The intent of the camping would be for farm participants only. Miller proposed no more than three camping units at one time with a maximum of six adult campers. Only full, self contained RVs would be allowed with the current sanitary provisions. The applicant requested the use of one central fire ring and conditions recommended by the Lawrence Fire Department were included. The existing privy may be used to serve the camping use provided provisions for hand washing or hand sanitizer is provided. One chemical toilet must be provided on site. Miller discussed that when camping and units that are not self contained are used, sponge bathing accommodations will be provided and Zoning and Codes Department notified. The Douglas County Health Regulations state that water that touches the body cannot touch the ground and proper containment must be provided.
A valid protest petition was received which would require approval to have a unanimous vote.
Gaughan said Miller has mentioned the applicant had attempted to approve this camping request through the mobile home/agricultural farm accessory building rule. He asked staff to explain the ag accessory/mobile home rule.
Flory added he had read the Board of Zoning Appeals decision and the finding as Lowther’s intended campers were not employees in the meaning of our code which allows for a mobile home on a farm for an accessory use. The occupants must be family related to the owner or are employees engaged in working on a farm.
Linda Finger, Interim Director of Zoning and Codes, stated that is correct. Finger stated she was not at the first BZA meeting the applicant went to. But two years ago when Lowther asked to have a camper on her property for lamb birthing, Zoning worked with the County Counselor and determined if someone is working for you, paid or not, they are employed. She was allowed to have a camper for the birthing season for a limited period of time. Whether paid or not, farm hands are considered employees.
Gaughan stated the health department approved a privy for use with camping. He asked if the health department had a list of conditions approved for camping use. Miller stated there is not. Gaughan asked if Richard Ziesenis looks at these requests on a case by case basis. Miller stated that is correct.
Thellman questioned if Ziesenis was aware when he reviewed the application Lowther intended camping to occur for the majority of the year. Miller stated he was.
Gaughan opened the item for public comment.
Natalia Lowther, Pinwheel Farm, stated it has taken four years from starting the CUP process to get to tonight. She stated concerns that if her application is approved, the CUP two-year review time frame d s not give her enough time to act as a trial period before she may have to start the CUP process again. The CUP as presented to this Commission d sn’t address her ability to pitch a tent in her pasture if she needs to be with the flock at night for any reason. She d s not want a set period of time. She d s not agree with the final condition allowing for only fully, self-contained RVs. Her tent camper d s not meet that condition. She also wants anyone living on her property or guest to be able to camp on her property. She wants to be able to camp on her own property when the need arises without needing to seek governmental approval.
Flory asked Lowther to explain the existing structures on her property and who inhabits them. Lowther said she has two residences on her property. Lowther resides at 501 N Street. There is a family renting the main farm house on the property which sits on a separate parcel, 1480 N 1700 Road.
Lowther said she is hoping to have people come and stay temporarily on the farm while they are working there. She said she d sn’t have paid employees. She has contract laborers for jobs that need to be done. Lowther said in her opinion, the term ‘Employed at’ in the Code shows a utilitarian relationship, not a business relationship. Someone could be ‘employed at’ the farm without a salary. Lowther stated Keith Dabney, former Zoning and Codes Director, didn’t allow her to camp on her property. She is seeking the CUP to establish parameters in which to run her business, and manage her land and resources. She stated she d sn’t feel a CUP is required to do much of what she wishes to do. The camping is only for people participating on the farm. She has different groups of people coming to work on the farm and she’d like the groups to overlap. During these overlap periods, three camping units are not enough.
Natalya summarized the history of the camping issue on her property. She said in 2000 Keith Dabney told her people could camp on her farm for short periods of time but that the A District d s not allow recreational camping. She thought she was complying with the regulations in 2006 when she used the camper. She was told she was not permitted to camp. She asked to camp in 2011 since her guardian llama had died and she needed to be in the pasture to watch her sheep. Keith Dabney refused her request.
She mentioned that most people believe camping is permitted in the A District, several Planning Commissioners noted they had done so. She said she would like to know once and for all what rights she has on her own property. She d sn’t feel she needs a CUP for the uses she is requesting.
Flory stated Lowther’s operation diverges from the 99.9% of the people engaging in agriculture activities because of the camping thing. He asked Lowther to describe the groups of people she intends to have working on her property and the size of acreage she owns. Lowther responded she has 12 acres.
Flory stated the concern is not just having a couple of people assist on a small 12-acre farm, but large numbers and camping. Lowther replied she plans to host volunteers from the Worldwide Workers on Organic Farms (WWOOF) program. Individuals find a host farm to work for experience in exchange for food and housing. They often live in tents and RVs, some use bunk houses or spare rooms.
Flory asked how long these individuals stay. Lowther said it varies. The longest she has had someone stay with her is nine months.
Thellman said this is a program that is recognized in the circle of growers. However, there are more traditional training programs that send apprentices out. There are many apprentices in Douglas County who work at farms that don’t live there and are paid for their labor.
Gaughan asked if the Zoning Department is interested if someone were to reside with a Douglas County resident in their home for nine-months. Finger responded the County has no way of enforcing it unless it becomes a problem and the zoning department is made aware of the situation. Zoning becomes interested when someone sets up a residence in a barn or structure that is not constructed to code; when it d sn’t meet sanitary, ingress and egress, or health/safety requirements.
Flory stated in general you have a right to camp in a tent on your own property. If you want to go out and pitch a tent to be with an animal that is giving birth, Douglas County today d s not care. But if you bring in five people that are living in a camper, that changes the complexion. If you decide to make a tent a residence, or live out there five or six months with no sanitation, that is subject to Zoning Regulations.
Miller stated there has been discrepancy in the camping determination by a previous Zoning Director. In an emailed response to the Planning Commission’s question in 2010 as to whether camping on private property was permitted Dabney replied that the zoning office has consistently cited people who camp as a violation of the zoning regulation. He indicated they allowed it in her case for a short period of time because she was the property owner but haven’t before that or since. She suggested a written interpretation from the current Director might help clarify the issue.
Thellman stated there should be a distinction between recreational camping versus pitching a tent meant for a residence.
At 7:55 p.m., the Board took a 10 minutes recess.
At 8:10 p.m., the Board returned to regular session.
Diane Menzie, 509 North Street, said she lives in front of Pinwheel Farm.
She stated Natalya lives in the county, not in the country. Everyone would like
to see a resolution on the camping issue. There is a huge problem with enforcement. The neighbors are mainly concerned with the number of campers on the property.
Ted Boyle, President of North Lawrence Improvement Association, stated this is about a camping problem. His concern is that Lowther wants to allow transients to camp on her property; and because her farm is registered as agritourism he has concerns the 100 people allowed for events will also decide to camp there.
Joyce Higgins, 517 North Street, stated she agrees Lowther should be able to camp in her backyard. She disagrees that outsiders should be allowed to camp on her property. Higgins also stated concerns about sanitation.
Marci Francisco, 1101 Ohio, asked where we draw the line for agricultural land. She stated this is an issue that falls between city and county and she hopes we can come up with reasonable regulations that apply to all agricultural land. Francisco said borders are hard, but people who live on the edge experience a different situation and that’s something we all have to live with. She stated that the regulations should apply to all agricultural lands or that new regulations be written for all border properties.
Flory said we have a B-3 district designated for camping. He asked for more information. Finger stated B-3, a commercial district, was created in 1972 for activities that occur around a reservoir with overnight camper trailer grounds. CUPs should be used for uses that are indistinctive or have not been discussed in the regulations. Finger said she feels overnight camper trailer camping is clearly a commercial use in a commercial district. She said the personal camping Lowther wants is allowed to occur on her property, but not perhaps in the format she would like it in for farm worker. You could have a recreational vehicle or mobile home that serves as an accessory to the farm. You could have a room in your house used for your farm employee. Finger said she d s not see the need to create something new when what Lowther is asking for exists in the regulations.
Miller added a replacement in Directors has changed the interpretation on the regulations. There has been interest by those using the Agritourism designation to see camping allowed around ponds, for example at Sadie’s Lake. Specifying whether camping is allowed would be beneficial.
Flory stated when we created agritourism, it carved out an exception to allow commercial activity in an agricultural district. He said we did that intentionally and purposefully to allow some degree of commercial uses in what was an agriculturally zoned territory. In that legislation, the Board expressly did not extend agritourism activity to allow camping. Miller stated that is correct because there were no standards in place for the camping use. You can have farm tours and a lot of the other uses without having serious sanitation problems.
Flory asked with a B-3 zoning classification if an applicant wanted to have overnight camping would they have to go through certain criteria on sanitation and all the things we utilize to make sure an area where people inhabit are safe and the surrounding area is adequately buffered. Miller stated we use about the same criteria for determining compatibility for a CUP as we do for rezoning. The areas that can be rezoned to the B-3 District are outlined in the Comprehensive Plan and in the Zoning Regulations. The B-3 District is seen as vehicular oriented zoning district that is primarily located around a lake. Rural Tourism (RT) is basically a district for uses that are more intensive and the applicant d sn’t want a CUP, which could include RVs and camping and be located around a lake.
Gaughan asked how this concept would be treated with an RT zoning. Miller replied the RT is meant for a larger area with a 150-ft buffer, and there is separation between the different RTs of three-miles or what the Commission sets as appropriate. Most RTs are large like Sadie’s Lake, The Woods and the site for the Mid-America Association of Autistic Training and Research (MAATR) organization.
Gaughan stated the Planning Commission’s discussion focused on the number of recommended conditions being difficult to enforce and some are just not enforceable. We put conditions on CUPs to get them off on the right track. This discussion is about camping. Gaughan said we have the ability for people to live in mobile homes on ag land as an accessory use to the ag use, but that is a more permanent situation. Finger responded the mobile home use on ag land is an ancillary living accommodation for a family and/or employee of the farm. There is specific wording in the Zoning Regulations that if you there are two or more mobile homes on a property, it is by definition a mobile home park and you need to have a Conditional Use Permit (CUP). This is a more permanent view of a mobile home because it has its own sanitation and septic system, has access to water with more permanent living accommodations.
Gaughan asked what acreage is required for a residence. Finger replied there is a minimum of three-acres if you have a public water source or five-acres, if using a well.
It was determined that Lowther is in the process of acquiring property to attach her landlocked parcels to a vested land parcel to create road through a land combination survey; establishing her eligibility for a residential building permit. The septic system on the vested parcel would be put into use to provide a place to dispose of waste wash water and construction of a shower facility.
Thellman asked if the people in the WWOOF program submit resumes or any type of personal information when applying for work. Lowther said there is no acceptance or rejection. It’s up to the farmer to set the terms as what is acceptable for their farm. Lowther said she talks to the applicants in advance, asks for a resume and discusses their experience.
Gaughan stated the Commission is in agreement Lowther can camp on her property without a CUP. The question is whether other people can stay on her property and help her. If it is a family member, there is no issue. However, Lowther is looking at a consistent stream of people. That is why there is a proposed limit. Gaughan said he is not supportive of a trial period. He also d sn’t think the County is allowing ‘run of the mill’ camping. This is a unique circumstance. He said smaller number of campers is a common sense place to start discussions.
Flory stated with agritourism, we carved out an exception by allowing limited commercial activity on agricultural property. The applicant has taken full advantage of that and her neighbors have been supportive of it. Agritourism d s not extend to camping. We are now discussing a request for multiple camping units on a small acreage in direct proximity to other residential areas. Flory said this requires a CUP because it is not a permitted use otherwise. It’s an exception to an authorized use. He said he might be more persuaded if he didn’t think the applicant could carry out many of the goals she wishes to carry out without multiple campers on this site with very limited sanitary conditions and enforcement difficulties. He is inclined to not vote for the CUP. With the property she has now acquired and some of the things she has proposed, Lowther may be able to come back at a later date with a different structure creation that might accommodate the people she is trying to oblige and keep them onsite. Flory stated he is troubled by the multiple campers, use of a privy or portable toilet and hand washing issues. Flory said this is another commercial, higher density step he is not ready to take.
Thellman stated she is concerned about the message the County would be sending if the Board were to set a property apart and treat it differently than other agriculturally zoned land. This may be working against other goals we are trying to support in sustainable, agricultural and local food production. She asked if we are shutting down opportunities on other farms that don’t have these issues with the neighbors or conflicts. She asked staff if owners of agriculturally zoned property allow a family member or paid employee on the farm to have a mobile home on the land.
Finger responded that is correct and the employee d s not have to be paid. But the building/camper has to meet code and be in a permanent location, like you would see with a mobile home. It must have a water supply and a sanitary sewage facility. A pop-up camper d s not qualify.
Flory asked if Lowther’s RV has been determined to qualify as a mobile home. Finger answered that is has been determined to meet the code definition of a mobile home and that is why the BZA said it could be used to house people if it complied with sanitation requirements. Flory asked if Natalya’s RV could be property situated to satisfy her need to house people there for agricultural training. Finger responded yes, in that case, a CUP would not be needed.
Finger stated that a mobile home on a farm would need to be accessory to a principal residence.
Lowther said she is happy to have the Board deny the CUP if she can camp on her own land and have a mobile home ag-worker exemption as an accessory use to a farm.
The Commission discussed the wording of Section 12-306-2.17 regarding mobile homes permitted in the A District and whether when used by someone employed on the farm the mobile home is considered an accessory use to the farm or to a principal dwelling on the property. Flory said it appears that the employee mobile home is not tied to the ‘main dwelling’. Finger indicated that the County Counselor had helped with the interpretation on this provision when the request was appealed to the BZA. Gaughan said it appears that the mobile home for the relative is linked with the dwelling and the mobile home for the employee is linked to the farm. Linda Finger said that is not how the Zoning and Code’s department had interpreted this provision in the past, but it would be something the department could take another look at with the County Counselor.
The Commission asked Finger to come back to them, after discussion with Mr. Ice, with a determination if the travel camper/mobile home on site should be approved by the Zoning Department as an accessory use to the farm; or if it must be located on a parcel with a residence to meet the Zoning Regulations requirements.
Gaughan moved to deny CUP-2-1-10, a Conditional Use Permit, to allow seasonal camping accessory to farm operations, on approximately 12 acres, located at and adjacent to 1480 N. 1700 Road. Motion was seconded by Flory and carried 3-0.
Note: The Board recommended the applicant make an appointment with Linda Finger, Interim Director of Zoning and Codes, to discuss how she may have a mobile home as an accessory farm building on her land and meet all zoning regulations.
Gaughan moved to adjourn the meeting; Flory seconded and the motion carried 3-0.
____________________________ ____________________________
Nancy Thellman, Chair Jim Flory, Vice-Chair
ATTEST:
____________________________ _____________________________
Jamie Shew, County Clerk Mike Gaughan, Member
Time and Date