WEDNESDAY, JULY 19, 2017
-Consider approval of the minutes for March 29, April 5, April 12 (amended), May 10, May 24, May 31, June 7, June 26, June 27 and June 28,(Budget and Regular) 2017.
(1) (a) Consider approval of Commission Orders; and
(b) Review and Approve Amendment 1 and Amendment 2 to the Memorandum of Understanding between Douglas County and the Kansas Department of Corrections- Juvenile Services. (Pam Weigand);
(c) Acquisition of easement for drainage structure replacements Project No. 2013-08 (Str. Nos. 11.50N-00.20E, 11.50N-00.40E, 11.50N-00.67E)-(Kevin Sontag);
(d) Acquisition of easement for drainage structure replacements and roadway
Realignment Project No. 2013-13 (Kevin Sontag);
(e) Authorize the County Administrator to execute contract with AJW Consulting for communication services. (Weinaug);
(f) Consider approval of acquisition of Easement; Drainage Structure Replacement; Project No. 2015-56 Structure No. 6.71N – 21.00E (Michael Kelly); and
(g) Consider approval for Acquisition of Easement for Project No. 2015-05; County Route 458 (Michael Kelly)
(2) Consider CUP-17-00215: Consider a Conditional Use Permit for a new 190 ft self-supporting wireless telecommunications facility (tower), located at 2138 N 1000 Rd. Submitted by MW Towers LLC for F. Dwane Richardson & Valerie Richardson, property owners of record. Joint meeting with Eudora Planning Commission.(Sandra Day)
(3) a) Consider approval of Accounts Payable (if necessary)
-Board of Zoning Appeals (1) position 10/16
-Community Corrections Advisory Board
(c) Public Comment
July 19, 2017
Gaughan called the regular meeting to order at 6:00 p.m. on Wednesday, July 19, 2017 with all members present.
Gaughan moved approval of the minutes for March 29, April 5, April 12, May 10, May 24, May 31, June 7, June 26, June 27 and June 28, 2017. Motion was seconded by Thellman and carried 3-0.
CONSENT AGENDA 07-19-17
Gaughan moved approval of the following Consent Agenda:
► Amendment to Memorandum of Understanding and Amendment No. 2 to Memorandum of Understanding with Kansas Department of Corrections-Juvenile Services providing Youth Advocate Program (YAP) and free space for the YAP program;
► Acquisition of Easement for drainage replacement for Project 2013-08 on 303 (N1150 Road-County Route 458) (Str. Nos. 11.50N-00.20E, 11.50N-00.40E, 11.50N-00.67E) with: Mark and Brenna Walfkuhle, Berryton, KS, Tract No. 1; and Beverly C Drew, Topeka, KS; Tract No. 1;
► Acquisition of Easement for drainage replacement and roadway realignment for Project 2013-13 with: Mark and Brenna Walfkuhle, Berryton, KS, Tract No. 3; The Robert C. Fusco and Sharon K. Fusco Joint Revocable Trust dated September 22, 2011, Berryton, KS, Tract No. 4
►Services Contract with AJW Consulting, LLC;
► Acquisition of Easement for drainage structure replacement, Project No. 2015-56, Structure No. 6071N-21.00E with: Edward W. Jr. and Teri L. Moore, Eudora, Kansas, Tract No. 1; Dustin and Heather Moore, Eudora, Kansas, Tract No. 2; and Praire Joy, LLC, Stilwell, Kansas, Tract No. 3; and
► Acquisition of Easement for Project No. 2015-05; County Route 459 with: Cathy and Tim Wales, Lawrence, Kansas, Tract No. 22.
Motion was seconded by Derusseau and carried 3-0.
The Board considered CUP-17-00215, a Conditional Use Permit for a new 190 foot self-supporting wireless telecommunications facility (tower) located at 2138 N 1000 Road. The application was submitted by MW Towers LLC for F. Dwane Richardson and Valerie Richardson, property owners of record. Sandra Day, Lawrence-Douglas County Metropolitan Planning Staff, presented the item. The Eudora City Commission was invited to the Planning Commission meeting. They did not attend but did send correspondence.
Thellman disclosed she had conversations with Barbara Braa and Patrick Kelly.
Thellman stated it is unusual for a CUP to move forward with a CUP when the property in question in not in compliance with County regulations. Day responded planning treats the CUP separately. She made the applicant aware they are not in compliance. She hopes the current CUP will help move their compliance efforts along. Day stated staff has 150 days to get through the review process from the time the application is submitted on the telecommunications tower and that would be tight if they were to defer until the property owner is completely in compliance.
Gaughan asked for clarification that if the CUP is denied the applicant must wait a year to reapply. Day responded she believes that to be correct.
Thellman said she is torn because it is a strange precedent to move forward on a big project that is not in compliance and to assume that the compliance process will be completed. Day said in regards to the conditional use for the business, if denied, the property owner also have wait a year before they can reapply for their business. Presumably, the property owner would have to suspend their business or relocate their business to a property that has proper zoning. Day stated planning staff member Mary Miller is working with the property owner. Day said she was not aware there was a noncompliance issue until she was into the review for the tower CUP, and notified by County Staff as part of the application review process.
Craig Weinaug, County Administrator, asked if the County Commission were to wait to approve the CUP until the property owner was incompliance would that be a legitimate reason under law to deny the application. Weinaug added he is not suggesting that the Commission wants to deny the application, but wants to know the legal options. Day stated if the Commission chooses to deny the application, it must be in writing and “reasonably contemporaneous.” Day suggested the County defer the decision for two weeks to seek legal counsel.
Thellman asked if Day’s presentation provides instructions on what the Commission is not allowed to use as part of their reasoning. Day replied you cannot require justification and/or burden of proof for the tower; or deny due
to certain health factors like the impact of radio frequency on health or crops. Day recommended if the Commission wishes to consider denial, they defer the item to seek legal counsel for clarification. Day add the application process must be completed within 150 days.
Day went on with the presentation. The tower is unmanned, requires only periodic maintenance and generates low traffic. It is less than 200 feet so it does not require lighting. Some of the public comments staff heard are part of the agenda packet and focus mainly on aesthetics. The applicant will be required to get a driveway permit for the addition driveway to 1000 Road and would be reviewed just as any other farm access drive would be. In regards to the concerns with personal aircraft and crop dusting activities, pilots are used to contending with those kinds of obstructions. The Board would need substantial evidence to try to deny the application for this type of issue conflict. She suggested again consultation with legal. Day added the proposed tower will not encroach on any sensitive land areas that could be identified. Staff looked at the public health and welfare as one of the factors of consideration. They looked at access and noted the vehicular motoring public is protect in this project. The applicant has agreed to set the tower back so that the fall zone does not encroach onto the public right of way. The overall height of the tower is 190 feet. Changes to state and federal regulations allow wireless facilities to make changes up to 20 feet or 20% either at the ground or overall height and are considered minor changes. Local jurisdictions are required to comply. However, if the height if raised over 200 feet is must be lit. This was a discussion at the Planning Commission meeting. The applicant was agreeable to the conditional that was written at the public hearing that any changes to this facility that required lighting would require the CUP to come back to the Planning Commission for a full public hearing and back to this body before proceeding with any kind of improvement.
Thellman asked for clarification that even if the applicant welcomes that prospect and we have a public hearing the Commission cannot deny the changes. Day replied she is unaware how much this has been tested in the courts so any questions regarding changes should be directed to legal counsel.
Day also stated if there are other regulations such a FAA and FCC, the staff does not review those but according to the County Code, the applicant is obliged to follows those regulations also. There is a valid protest petition so approval of the application would require a three-fourths vote. In this case it would be a 3-0 vote for this body. Day said if the Board wishes to consider denial, she would recommend deferring the item to review the reason with legal counsel to support those reasons for denial.
Vincent O’Flaherty, representing MW Towers LLC, made a presentation to the Board Also in attendance was Paul Wrablica, managing member and owner of MW Towers, LLC. O’Flaherty asked the Board to approve the application for CUP as the tower will benefit the community at large providing cellular communications to the individuals and business in the Eudora area. He then addressed three subjects: the application, the background of the applicant; and that he is a lawyer experienced with the Kanas Statute 66
2019 relating to this application. There are 18 things within the statute that the County cannot considered for denial. According to O’Flaherty, the County cannot impose restrictions greater then what the FAA proposed; and you cannot impose unreasonable restrictions on the appearance of the tower. The Statute is set to encourage towers so all residents of Kansans have access to broadband services so we can remain competitive in the economy.
Thellman asked O’Flaherty to list the reasons the Commission cannot consider for denial. O’Flaherty said the items are listed under 66-2019 (f) which includes: safety, aesthetics, discrimination or create a preference on the basis of ownership; nor can you inquire about specific needs or ask about other available locations;
Derusseau asked if the tower will accommodate for providers and if there are pending agreements. O’Flaherty stated the tower will accommodate four co-providers. Under the statute you cannot ask if there are four pending lease agreements. However, O’Flaherty answered they wouldn’t be putting a tower there if they didn’t already have one or more parties interested in co-locating. The process is the co-locators want a permit in place before signing an agreement. This would happen before construction.
Derusseau asked if the company would be willing to move the tower to another location on the property. O’Flaherty stated they’ve moved it once already, but they would be willing to consider any reasonable request.
O’Flaherty then proceeded to read through the K.S.A. statute 66-2019 per the Commission’s request.
At 7:05 p.m., the Board took a five minutes recess. The Board returned to regular session at 7:10 p.m.
Patrick Kelly, 14600 Village Drive, Olathe, stated he owns property adjacent to the proposed site. He has concerns the tower will cause a decrease in property values; the aesthetics of an unsightly tower; safety concerns regarding additional property entrances on a busy road; low flying aircraft; safety concerns for crop dusters; and the impact on migrant birds. Kelly also stated is was his belief that the Extension Safety and Security Act of 2016 would require the tower to be lighted.
Barbara Braa, 1032 E 2100th Road, encourage the Commission to seek legal advice and defer this item. She said there are a lot of residences to the east and south and has concerns the tower will affect their property values. Braa also feels the Commission should require a performance bond so there is money to take the tower down when it’s time for deconstruction.
Justin Kelly, 18962 W 118th Street, Olathe, stated he was speaking on behalf of his father, Steve Kelly, about his property value impact and the towers effect on the wetlands.
Gary Elston, 2106 N 1000 Road, said he is in opposition of the tower. It would be in his full view all the time. He also stated concerns about the towers effects on his property value.
Gaughan said he would like to consider deferring this item to review the staff report and refer to legal counsel regarding the statute brought the Board’s attention. He is not ready to make an informed vote tonight.
Gaughan motioned to suspend the public hearing and defer the item to the August 16, 2017 meeting at 6:00 p.m. The Board would disclose at that time any ex parte communications, though he prefers the Board not have any.
ACCOUNTS PAYABLE 07-19-17
Gaughan moved to approve accounts payable in the amount of $4,664,111.25 to be paid on 07/20/17; and payroll in the amounts of $994,637.45 paid on 07/07/17, and $990,820.25 paid on 07/17/17. Motion was seconded by Thellman and carried 3-0.
Gaughan moved to appoint Patrick Schmitz to replace David Johnson on the Community Corrections Advisory Board. Motion was seconded by Thellman and carried 3-0.
Gaughan moved to adjourn the meeting. Motion was seconded by Derusseau and carried 3-0.
Mike Gaughan, Chair Nancy Thellman, Vice-Chair
Jamie Shew, County Clerk Michelle Derusseau, Member