Meeting Information
Amended Agenda
WEDNESDAY, JUNE 3, 2015
4:00 p.m.
-Consider approval of proclamation declaring June 7-13 and “Relay Life Week.” (Betty Parks)
CONSENT AGENDA
(1) (a) Consider approval of Commission Orders;
(b) Consider approval of Engineering Services Contract for the Project No. 2015-67 Replacement of Bridge No. 09.58-09.00E (Keith Browning); and
(c) Authorize payment of half of the costs of the security project for the Community Health Facility as specified below. (Craig Weinaug)
REGUALR AGENDA
(2) CUP-15-00060: Consider a Conditional Use Permit for a micro-distillery, a Value-added Agricultural Business, located on approximately 20 acres at 1743 N 200 Rd, Baldwin city. Submitted by William R. Murphy for Sunwise Turn Farms, LLC, a.k.a. Maple Leaf Orchards, LLC, property owner of record. Mary Miller is the Planner.
(3) (a) Consider approval of Accounts Payable (if necessary)
(b) Appointments
-Douglas County Senior Services Board of Directors (1) positions
(c) Public Comment
(d) Miscellaneous
RECESS
RECONVENE
6:00 p.m.
(4) Consider approval of a county resolution amending the construction codes of Douglas County, Kansas, September 19, 2012 Edition, as codified at Chapter 13 of the Douglas County Code. (Jim Sherman)
(5) Adjourn
June 3, 2015
Flory called the regular meeting to order at 4:00 p.m. on Wednesday, June 3, 2015 with all members present.
PROCLAMATION 06-03-15
Flory moved to approve a proclamation declaring June 7-13, 2015 as “Relay for Life Week” and presented by Betty Parks. Motion was seconded by Thellman and carried 3-0.
CONSENT AGENDA 06-03-15
Gaughan moved approval of the following Consent Agenda:
► Commission Order Nos. 15-028 and 15-029 (on file in the office of the County Clerk);
► Awarded a lump sum contract in the maximum amount of $24,500.00 to Finney & Turnipseed, Transportation and Civil Engineering, LLC to provide engineering service to replace Bridge No. 09.58N-09.00E, Project No. 2015-67; and
► Award of the base bid alternate #1 and deduct alternate #2 for Community Health Building improvements for security (PW1343) in the amount of $98,498.00 split between the City and County (County portion being $49,249.00) to Simplex Grinnell LP provided they meet the requirement of the signed contract.
Motion was seconded by Thellman and carried 2-0.
PLANNING 06-03-15
The Board considered, CUP-15-00060: a Conditional Use Permit for a micro-distillery, a Value-added Agricultural Business, located on approximately 20 acres at 1743 N 200 Road, Baldwin City. The application was submitted by William R. Murphy for Sunwise Turn Farms, LLC, a.k.a. Maple Leaf Orchards, LLC, property owner of record. Mary Miller, Lawrence-Douglas County Metropolitan Planning Staff, presented the item.
The property adjacent to the Baldwin City limits is located on a minor collector road and sits within the Urban Growth Area of Baldwin City. A joint Baldwin City Planning Commission and Lawrence-Douglas County Metropolitan Planning Commission meeting was held because of property is located within three miles of the city limits of Baldwin. The applicant plans to produce about 10,000 gallons of brandy per year. He is currently planting apple trees though there will be some growing time required. The applicant will bring in apples for now and other types for produce when needed. Staff feels the application meets the value added ag conditions. There are no plumbing fixtures in the Morton building. Rather than making a condition they have to connect water at this time, staff recommends the Lawrence-Douglas County Health Department check the floor drain to see if it’s acceptable. When the applicant adds plumbing a septic system will need to be installed meeting code.
Staff recommends approval of the Conditional Use Permit for a micro-distillery, a Value-Added Agricultural Business Use, based on the following findings of fact:
I. Zoning and uses of property nearby. The area is at the boundary of Baldwin City Limits and contains low density residential City zoning, and agricultural and residential County zoning. The primary uses in the area are low density residential and agriculture. Given the small scale of the proposed micro-distillery, the use would be compatible with the zoning and uses of nearby properties.
II. Character of the area. This is a rural area near the city limits of Baldwin City. Major thoroughfares in the area provide good access to the major transportation network. The proposed use would be compatible with the current land uses and character of the area.
III. Suitability of subject property for the uses to which it has been restricted. The property is suitable for the uses which are permitted within the A (Agricultural) District. The property is also suitable for the proposed Value-added Agricultural Business use, a micro-distillery, when approved as a Conditional Use, given the small scale of the facility.
IV. Length of time subject property has remained vacant as zoned. The Douglas County Appraiser’s records indicate that the residence was built in 1966, which was the year Zoning Regulations were adopted in the unincorporated portions of Douglas County. The outbuildings were constructed in 1980, a farm storage shed, and in 2011, a utility building. The property has been developed with residential and accessory structures since the adoption of zoning in the County.
V. Extent to which removal of restrictions will detrimentally affect nearby property. The use is small scale and should have no negative impacts to the adjacent 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. In staff’s opinion, the approval of this request will result in a compatible project
that will not harm the public health, safety or welfare. Denial of the request would provide no benefit to the public health, safety or welfare.
VII. Conformance with the comprehensive plan. A Conditional Use Permit can be used to allow specific uses that are not permitted in a zoning district with the approval of a site plan. This tool allows development to occur in harmony with the surrounding area and to address specific land use concerns. The proposed CUP is compliant with the recommendations in the comprehensive plan as it will maintain the rural/agricultural character of the area and won’t require the extension of City infrastructure.
And subject to the following conditions:
1. The following standards apply to the use:
a. A maximum of 4 full-time equivalent employees are permitted.
b. The total area of the structures used for operation, production, or storage may not exceed 10,000 sq ft.
c. Noise, light, vibration, or odor associated with the production may not be perceptible beyond the site boundary/property lines.
d. The process must comply with EPA water and air quality standards.
e. All equipment used in production shall be located wholly within a building or structure or be screened from the public rights-of-way and adjacent residential buildings.
f. Product shall be enclosed within a building or structure so that it is not visible from the property lines.
g. Deliveries from vehicles with a GVW (Gross Vehicle Weight) that exceeds 5 tons in capacity are limited to no more than 2 trips (to and from the site) per day.
2. Provision of a revised CUP plan with the following changes:
a. Identify the areas where storage for the aging process may occur and add the following note “If storage is to occur in any structure other than the Morton building, the Zoning and Codes Office shall be notified, all necessary building permits obtained, and the structure shall be brought into compliance with current building codes before use.”
b. Add the following notes:
i. “The Conditional Use Permit will be administratively reviewed by the Zoning and Codes Office every 5 years following approval.”
ii. “Prior to the commencement of the use, an additional septic system shall be installed for the Morton building or the Morton building will be connected to the existing septic system.”
iii. “Prior to the commencement of the use, the wastewater treatment measures for the Morton Building shall be installed as required by the Douglas County Health Department. If a floor drain is permitted at this time, connection to a septic system shall be provided when plumbing fixtures such as a restroom or hand-washing sink are installed in the Morton Building.”
Flory opened the item for public comment. No comment was received.
Flory moved to approve CUP-15-00060 for a micro-distillery, a Value-added Agricultural Business use, subject to the conditions listed above; and the added condition to contact the health department when septic is required. Motion was seconded by Thellman and carried 3-0.
ACCOUNTS PAYABLE 06-03-15
Flory moved to approve accounts payable amount of $95,136.47 paid on 06/01/15. Motion was seconded by Thellman and carried 3-0.
MISCELLANEOUS/BOARDS 06-03-15
There was discussion about possibly setting up a County Mental Health Advisory Board, a working group to identify where the gaps are in the system and how to address them over time. There may be a heavy dependence upon David Johnson, Bert Nash, to help identify the community resources already in place and where there are gaps.
MISCELLANEOUS/FAIRGROUNDS 06-03-15
Sarah Plinsky, Assistant County Administrator, gave an update to the Board on the status of the fairgrounds project. The County has released the RFP for construction management services. According to statute, this is a two-step process. In stage one, we solicit just a qualification statement; in stage two, we select no less than three and no more than five companies to submit full proposals. The hope is to have interviews after the budget process in mid July.
RECESS 06-03-15
At 5:40 p.m. Flory moved for the Board to recess until 6:00 p.m.
RECONVENE 06-03-15
The Board returned to regular session at 6:00 p.m.
PUBLIC COMMENT 06-03-05
Laura Green, 1302 N 200 Road, Baldwin City, made comments to the Board regarding an appeal she filed with the Building Code of Appeals Board, on the Kobach property permit of occupancy, which was denied. Denial was based upon her not having an interest in the property in question. This determination came from the County Counselor. She feels her appeal should have come before the Board of County Commissioners.
Green read a section of the Code claiming any person has a right to appeal an action to the Building Code of Appeals Board.
Flory stated the chief inspector conferred with the County Administrator who conferred with the County Counselor to make a determination as to whether this was a legitimate appeal to be submitted to the Building Code of Appeals. The fundamental preliminary problem with Green perfecting an appeal in a case of which she has no involvement is a lack of standing. When interpreting a statute or regulation, terms have to be interpreted in context. Flory said the section Green sited deals with people who are involved in the decision which are the builder, the contractor and the land owner. Legal Counsel feels Green does not have standing and Flory stated he agrees. He said he feels there is no court that would disagree with that determination.
Flory stated is it arguable that even if Green could get past the standing issue, he questioned the appeal even being appropriate to be heard by the Building Code of Appeals as it is not the Board’s function to hear the nature of these issues.
John Bullock, representing County Counselor Evan Ice, stated they did give the legal opinion that Ms. Green did not have standing to present this appeal. He went on to comment that generally we would concur with that as the person who is not the applicant or the property owner, Green does not have a direct personal interest in the project that would give her standing under the code to make that appeal to the Building Code of Appeals Board. Bullock said he would further agree this is the appropriate place to come to voice her opinions as well as she can go to County Administrator, the newspaper or anyone else she wants. That board has a very limited function under the code that you enacted.
No action was taken.
RESOLUTION/CODE 06-03-15
The Board considered the approval of a county resolution amending the construction codes of Douglas County, Kansas, September 19, 2012 Edition, as codified at Chapter 13 of the Douglas County Code. Jim Sherman, Director of Zoning and Codes, presented the item.
Flory stated what is before the Commission pertains to inspectors discretionary ability to waive the double fee, not a fine, for a building permit when work has been commenced on a building without obtaining the necessary permits. The existing language says “shall.” Assuming “shall” means mandatory, the question before the Board is whether the Commission wants to apply more discretion in the imposition of the additional fee when work is commenced.
The language presented in one alternative is as follows: Any person who commences any work on a building structure, electrical, gas, mechanical or plumbing system before obtaining the necessary permits shall be subject to an additional fee established by the permit fee schedule and which shall be an addition to all other required permit fees. Provided however, that the building official shall have the authority to waive some or all of the additional fee if the building official determines the failure to obtain the permit was not an intentional act to avoid fees, inspections or other provisions of the construction code; and two, if the person requiring the permit cooperates in applying for the permit, paying permit fees and complying with other provisions of the construction code.
The second alternative is as follows: Any person who commences any work on a building structure, electrical, gas, mechanical or plumbing system before obtaining the necessary permits shall be assessed an additional fee of (blank) for the Commission to consider a dollar amount. The additional fee shall be in addition to all other acquired permits. Flory stated that would continue the mandatory fee, but rather than make it double, it would provide a dollar figure like the City of Lawrence has adopted for their code with a $500 figure.
Flory stated it is his understanding the fee is imposed in the event they have clear proof the person willingly started work with the intention of acquiring the proper permits. The City has the ability to exercise discretion.
Before opening for public comment, Flory remarked that if the forthcoming comments were based on the three stories by the Journal World, frankly in his opinion those stories are full of misleading factors and statements that are incomplete, and sometimes they are just plain factually inaccurate. If concern is about the “mythical unwritten policy,” the fact is there is no such policy. It doesn’t exist nor ever has existed. No public official has ever said there is a “policy of leniency,” a term used by the reporter. County officials are talking about the approach and attitude in code enforcement. Overall in county government we basically want courteous, respectful, cooperative approach to people, working with people; not to be heavy handed and confrontational. Flory said generally all county employees adopt that approach. There have been occasions when Zoning and Codes came up short on that. Our comments to the County Administrator, was about approach, to enforce the code but do it in a customer-friendly manner. You can enforce the code and do it firm and fair. Flory said everything he spoke about had to do with approach and attitude.
Flory opened the item for public comment.
Kay Petit, Building Inspector for Douglas County Zoning & Codes, stated she has worked for the County for 23 years. She became a building inspector in 2003. During her early years with Zoning and Codes, the department had a reputation for being strict and overly zealous, and the codes and software were outdated. New codes were adopted by this Commission in late 2012 after a tremendous amount of prep work. Petit stated the recent setback the department has seen she attributes to the hiring of Jim Sherman, Director of Zoning and Codes. She officially requests an outside mediation to address the current department problems she listed as unorganized and a disregard of codes. Petit claims there are 30 violations of county code in the Kobach case. She asked that the Building Code of Appeals Board hear the matter. Regarding the denial of appeal by Laura Green, Petit stated it was never our intent to limit appeals to only persons of standing. She feels it should be any person on any decision on any project. Petit commented any licensed mechanic or builder should have a right to appeal anonymously. Petit stated she feels changing a few words tonight will not retroactively change the violations that have been committed.
At 6:35 p.m. Flory recessed for 10 minutes (until 6:45 p.m.) to confer with legal counsel. Attendees include John Bullock, representing the County Counselor; and Sarah Plinsky, Assistant County Administrator.
The Board returned to public session at 6:45 p.m.
Scott Mock, 1758 E 700 Road, stated he has worked with all of the three code administrators, Wayne Kellum, Keith Dabney and now Jim Sherman. Mock stated the County has needed someone like Jim Sherman in Zoning and Code since Kellum retired. He said Sherman is always available and wants to find a way to work things out. Mock stated Sherman will do good things for the County.
John Ayler, 2076 N 1000th Road, stated he feels the Kobach zoning case is a total violation of the code that has been in effect for years. He feels if Green was required to redo work on her property to meet code, Kobach should have been treated the same.
Don Sloan, 638 Nottingham Road, requested that the Board of County Commissioners do a review of the Kobach case from start to finish because apparently a certificate of occupancy was issued on a project that did not meet County Code.
Steve Lane, 211 E 8th Street, stated he feels Petit and Wempe have been excellent inspectors for Douglas County over the years. It would be helpful to clearly state in the code what the fees should be.
Walt Spencer, 761 Hwy 40, commented in his opinion there has been a history of property owners building agricultural buildings for residential use in Douglas County that were not inspected. Commissioners at the time assured the public this would not happen again. He feels Kobach being secretary of state should have been aware he needed permits if he wished to use his building for residential occupancy.
Laura Green, 1302 N 200 Road, Baldwin City, feels the County should set standard permit fees and use them consistently. She also stated she feels there is no need for the language change as proposed earlier in the meeting.
Stewart Young, 1555 N 400 Road, stated he is a licensed contractor. He would like to see Douglas County require everyone doing a building project to use licensed contractors or require them to become licensed. He feels contractors are more knowledgeable with the code.
Mark Engleman, 4200 Trail Road, stated he feels Petit and Wempe have done a good job inspecting though he hasn’t always agreed with them. He wanted to confirm that he, as a builder, has standing to appeal a code decision. Flory responded that Englemen would have standing to appeal on his own project or property, not someone else’s.
Julie Jasperson, 129 Sharon Drive, asked if changing the language tonight would allow the Director of Zoning to use more discretion. Flory responded the change in the language only deals with one small part of the code which is whether or not to access a double permit fee when someone commences construction without having the necessary permit. We are not discussing any code changes that make a vast change in discretion.
Jasperson then stated concern that the story in the paper was incorrect. She asked if the Commission or the reporter could write an editorial that outlines what did occur so the general public has a better idea of what happened. It looks like there were improprieties.
Flory said Jasperson was referring to the Kobach permit, that project is completed and an occupancy permit has been issued. Flory stated he questions whether the County even has the legal authority to go back and change the fees. Flory said he would be more than willing to write an editorial for the paper discussing the Kobach permit process.
Flory said in 45 years in dealing with the media he has never been publicly critical nor has he ever faced a situation that was quite like this as far as what appears to be a lack of candor and openness and completeness in the reporting. Flory said he does not take the comments he came in with tonight lightly. Flory said he agrees with Jasperson about the editorial to address information that is not accurate.
Bobby Flory, representing the Home Builders Association, stated she is here to speak about the so called “unwritten policy.” B. Flory said she agrees with the Mr. Young that requiring licensed contractors would be beneficial as they are often more knowledgeable about the codes. She stated for many years she had asked to have the international codes updated but was continually put off. Though the international codes had been reviewed by the construction board, they were never brought to the Commission for approval. Out of frustration, B.Flory said she called the County Administrator. Craig Weinaug, County Administrator, told her the County was looking for a code official that shows leadership and is a facilitator of the code, a partner in the process and a resource for contractors. B.Flory said she was excited because the builders were not getting that. Jim Sherman was hired and came to their home builder meetings of our board of directors to discuss some global and common themes that builders were having some issues with. Sherman assured them that his inspectors and staff were working hard to all work together under his new leadership to be more customer service oriented. He spoke with their larger organization to talk about their new concept of “customer service.” It is not an “unwritten policy” it was what she perceived as a policy that should have been all along. B.Flory said prior to Sherman coming, the comments she heard from builders were “I’ll never build in the County again. It was too frustrating.” B.Flory said after the paper brought up this whole thing about the inspection process in the County, she began contacting some of the county builders and asked how things were going after meeting with Sherman. The comments she received were “more helpful and problem solving and it was a pleasure to build in the County.” B.Flory stated she feels Sherman has been a facilitator of the codes, a partner in the process and a resource to the contractors.
Flory asked B.Flory if she was interviewed by the Journal World during the series of articles. B. Flory responded “yes.” He asked B.Flory if she made comments similar as tonight. B.Flory responded “yes.”
Bobbie Lowe, Lawrence Chamber of Commerce, stated she has a background in economic development. She stated since Jim Sherman has
been here our economic development couldn’t be stronger. She stated code enforcement is very important and the City of Lawrence has taken the steps to become more service oriented and she believes the County is doing the same thing. She thanked the Commissioners, their staff, Craig Weinaug personally and appreciates their relationship with The Chamber.
Martin Fee, resident of Douglas County, stated his concern is the codes are there to protect the consumer, not the builder. He does not feel leniency is the right course. The wording in the code should not say “shall, but will.”
Flory responded the Home Builders and members of the association are very supportive of the codes and want to see the codes enforced.
Frank Rhodes, 6 N 800rd Road, stated he is an electrician and a member of the Building Codes of Appeal Board. He said the Commission should turn over any violations for the Appeals Board to review.
Alan Button, Douglas County resident, stated he wanted to see Douglas County follow the code to level the playing field, and he didn’t want to see the County give someone authority to make adjustments.
At 7:25 p.m., the Board took a 10 minute recess to return at 7:35 p.m.
The Board returned to regular session at 7:35 p.m.
Flory gave background information on the Kobach permit issue. Flory stated the County Administrator came to him and indicated there was an unidentified public figure the zoning department was dealing with and asked for his guidance on making sure he was going in the right direction. Flory said I told him to treat that person exactly like anyone else. I didn’t know who it was and didn’t feel that information was important. Flory said he later discovered it was Mr. Kobach. He recently sat down with Jim Sherman and said he wanted to go through the file page by page and wanted to know everything good and bad.
Flory said he wanted to relate some of his concerns due to the reporting by the Journal World.
In June of 2013, an affidavit signed by Mr. Kobach was filed solely for agricultural use. There was no evidence of false information on that affidavit that he intended to use the property in a different matter. Clearly in the future, he did something different. From a perspective the County has to deal with, things change. Flory gave an example of where changing your mind does not make an affidavit false. Flory stated Ag exempt buildings can have bathrooms, water, electricity and offices and do not require a building permit. This was not made clear in the stories as published by Journal World.
Prior to April 24, 2014, Kobach initiated contact with Mr. Sherman stating he wanted to add electrical to his structure. Mr. Sherman told Mr. Kobach to let him know when he was ready for his inspection. On April 24, 2014 Sherman sent Pat Wempe to make an electrical inspection. Mr. Wempe based on the wiring and studs inside the structure felt Mr. Kobach intend to have a kitchen, bath, laundry and bedroom. Mr. Wempe told Mr. Kobach that if he intended to have a habitable structure he must have a building inspection permit. A short time later Mr. Kobach confirmed that he wanted to proceed with having a habitable portion of the structure, which triggers the need for a building permit and a floor plan. On May 4, 2014, Mr. Kobach submitted a building permit application and a floor plan. The amount listed on the permit, which has been a matter of contention and in Flory’s opinion inaccurately reported, was $70,000. Flory explained, when you do a remodel or a conversion, your building permit amount is based upon the conversion of your remodel. It is not the appraised value, which was approximately $140,000. Every story reported in the paper compared the amount for conversion remodel to the appraised value. The stories were incomplete. The fee that requires doubling is when you commence work for which a permit is required. There is a lot of work that could be done on the ag building that did not require a permit, like electricity, bathroom, or office. It does require an inspection, but not a building permit. There is a question on whether the County could impose a fee when most of the work that was done could legally have been done under the ag exempt without a permit. There were some things that were preemptory preliminary work to this intended work toward habitability which would require a permit. Flory said he was trying to point out this is not crystal clear, easy and clear cut. It was clear there was not a kitchen, bathroom or bedroom at the time of the inspection but to go forward a building permit would be required.
On May 23, 2014, the Health Department approved the onsite application for septic. Mr. Sherman received an email from the Health Department that the septic system permit was approved and it was ok to issue a building permit. On May 29, 2014, based upon follow up, the Codes Department released the electrical service. The permit application had been filed and was pending. On June 25, 2014 the building permit was issued. There after came inspections. Mr. Sherman conducted inspections on June 27, July 3, July 9, July 11, and the final inspection and passage in the issuance of the certificate of occupancy was on September 2, 2014.
Flory stated there are some important facts that have not been reported, or may have been misunderstood, or misrepresented. Some of the stories seem to indicate Mr. Kobach got caught. Flory stated the fact is Mr. Kobach called and asked an inspector to come out and inspect. The inspector did see problems, but Mr. Kobach wasn’t caught. Flory explained the key factor in triggering the need for a building permit is habitability, moving the need from agricultural structure to residential. This is not just in the Kobach case but in every case. All inspections were conducted including plumbing. The need to remove concrete to determine adequate plumbing is clearly discretionary on the behalf of the inspector under Section 13-112-1. Sherman determined the plumbing was adequate.
The issue of a water source has been a matter of concern. He had a temporary water source, not a good one, but a cistern in the unimproved part. Kobach intended to get on county water.
Like it or not, Mr. Kobach complied with each and every request made by the Code Department. According to the director he was completely cooperative. Flory stated Kobach’s project was found problematic but the building inspector worked with Kobach just like he would work with anyone to deal with an issue. Flory said he is absolutely, unequivocally convinced of that. Flory added he has no allegiance, political or otherwise, to anyone involved in this. He said after reviewing the file, all this (comment) is his opinion, including being critical of the media. Flory said the process was not perfect on either side. On the issue of double penalty, Flory said he feels there is a question on whether the county could legally impose a fee even if we wanted to after the building permit and occupancy certificate has been issued.
Regarding the language being considered, the change is small and doesn’t invest a great deal of discretion on behalf of the codes director. Flory added the codes department has chosen not to impose a double fee on other cases. Flory said he doesn’t have a problem leaving the language as is.
Gaughan remarked he is inclined to leave the language as is. He feels the County did not apply a penalty as we should have and that was a mistake. But he agrees we cannot go back and charge penalty after the occupancy permit has been issued.
Thellman said her sense is we don’t need to change the code language. She said what we want is for our people to have the attitude in the field of being fair, firm, courteous, consistent and approachable with a seriousness about the rules. Thellman said sadly changing the wording could work as a disadvantage for the director causing a sense of skepticism with the public. She suggested that the county pursue an independent consultant for the purpose of a Zoning and Codes overall department review.
It was a consensus of the Board to leave the code language as is. No resolution was adopted.
Flory moved to adjourn the meeting. Motion was seconded by Gaughan and carried 3-0.
____________________________ ____________________________
James E. Flory, Chair Mike Gaughan, Vice-Chair
ATTEST:
____________________________ _____________________________
Jamie Shew, County Clerk Nancy Thellman, Member
Time and Date
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