2009-03-09 Planning Commission Minutes (Approved)

Item No. 2 - CU09/01 by Webb M. & Julie A. Garlinghouse (Lake Edun) - Mr. Beagle relayed he received a letter today from Mr. Webb Garlinghouse requesting a continuance to the April 13^th public hearing. Mr. Garlinghouse would like to address a requirement of the Shawnee County Health Agency, which requires his property be connected to rural water and provide for a permanent on-site sewage disposal system by seeking an appeal to the Board of County Commissioners before proceeding with his request for a Conditional Use Permit.

Item No. 4 - CU09/04 by Waste Management of Kansas, Inc. - Mr. Beagle said he received a letter from Waste Management of Kansas, Inc requesting a continuance to the April 13^th public hearing to allow for additional time to meet and discuss with area residents the proposal and attempt to address their concerns and receive their acceptance of the proposal.

Voting on Request for Continuance

Mr. Beagle relayed since the above proposals were legally noticed for this meeting, it will be necessary for commission members to formally continue each item to April 13th public hearing. Property owners were provided advanced communication of the continuance to the April 13^th meeting for two of the proposal’s, however, time was not afforded to send advanced notice of a continuance to property owners regarding Mr. Garlinghouse’s request.

Mr. Macfee asked for a showing of hands as to who was present to speak to the KDOT proposal; no one was present, a showing of approximately 9 public members were present to speak on the Garlinghouse proposal, and no one was present to speak on the Waste Management proposal.

Item No. 1 - CU09/02 by the Kansas Department of Transportation. Ms. Johnson stated that KDOT specifically requested a continuance at the February public hearing to the March public hearing, even though a 60 or 90 day extension was previously suggested, and questioned the reason for the continuance. Mr. Beagle stated he had not received a response from KDOT within a specified time frame, which prompted him to pull their proposal from the March agenda. KDOT then sent communication stating they were not able to complete their comments and agreed to the April 13^th continuance. Mr. Beagle conveyed that KDOT is looking at decreasing the site area, relocating the aggregate stock pile and other improvements, as requested by Planning Commission members.

Mr. Murray motioned for a continuance to the April 13, 2009 public hearing, second by Ms. Johnson and was Approved by a vote of 6-0-0.

Item No. 2 - CU09/01 by Webb M. & Julie A. Garlinghouse (Lake Edun). Mr. Henriksen motioned for a continuance to the April 13^th public hearing, second by Mr. Murray for discussion of the item. Mr. Young then asked for a history from Mr. Beagle regarding the proposal.

Mr. Beagle stated the application was originally scheduled to appear before the Planning Commission for public hearing on February 09, 2009, however, it was pulled from the agenda by the Planning Department for the applicant to provide additional information to allow for a comprehensive scope of review. The application was then continued to the March 09 public hearing. Mr. Beagle then gave a brief time-line below:

· Mr. Beagle said the original proposal included a simple site plan, but no descriptive text was supplied that provided operational details, resulting in a 5-page letter being sent to the applicant on January 16, 2009, outlining a series of items that were expected to be submitted in conjunction with the application. The letter also advised the applicant that due to the lack of detailed information, the application was being pulled from the February 9^th agenda.

· An operating plan was received on January 29,2009, which was after the determination was made to pull the item from the February 9, 2009 agenda. In a letter dated February 14, 2009, Mr. Beagle sent a follow-up letter to the applicant requesting additional clarification of items, to which no response was received by the specified deadline of February 23, 2009.

· With no response received by March 2, 2009, Mr. Beagle completed the staff report, assuming the applicant was standing on the operating plan they submitted on January 29^th.

· Mr. Beagle provided history on the item stating that a similar request came before Planning Commission in the year 2000, which was then the Topeka-Shawnee County Metropolitan Planning Commission. The applicant initiated a request for a Conditional Use Permit after legal challenges and a determination by the Board of Zoning Appeals that such was required. The application ultimately appeared before the Shawnee County Board of Commissioners in March 2001 that granted the Conditional Use Permit subject to expiration December 31, 2002. From that date to present there should not have been any organized recreational activities.

· Mr. Beagle stated the issue of requirements of the Health Agency are independent of the land-use issue associated with the Conditional Use Permit.

· Mr. Beagle verified the letter for continuance was received today, March 09, 2009 from the applicant.

After Commission Members ended discussion, the request to continue Item No. 2 to the April 13, 2009 public hearing was Disapproved by a vote 4-2-0 (Mr. Henriksen and Mr. Bortz Dissenting). Mr. Macfee noted for the record there were approximately nine (9) members of the public present to speak on the issue and the item will be discussed at tonight’s public hearing.

Item No. 4 by Waste Management of Kansas, Inc. Mr. Henriksen motioned for a continuance to the April 13, 2009 public hearing, second by Ms. Johnson and was Approved by a vote of 6-0-0.

Staff Reports

1. CU09/01 by Webb M. & Julie A. Garlinghouse (Lake Edun) requesting a Conditional Use Permit to establish an outdoor recreational facility on property currently zoned “RR-1” Residential Reserve District and located about the southwest corner of SW 53rd Street and SW Indian Hills Road in Mission Township.

Mr. Beagle presented the staff report stating the property consists of approximately 65 acres with a large lake approximately located in the east-central portion of the property. The applicant seeks a Conditional Use Permit (CUP) to establish an outdoor recreational facility known as Lake Edun, which would be operated as a clothing-free recreational facility offering swimming, camping, hiking, and other outdoor type activities. Most activities would take place on the east side of the lake, near SW Indian Hills Road. The operational season will generally run from Memorial Day to Labor Day, and daily hours of operation are not specified at this time, however, the applicant specifies visitors must arrive on-site prior to 10:00 pm. To minimize conflict, visitors will not be allowed to disrobe within the parking area or be within a 100 foot setback along the north, south and west property lines. Because of insufficient land area along the east line, no setback is established, but the applicant states an existing berm running along Indian Hills Road is sufficient to provide a buffer in-lieu of a 100 foot setback.

Mr. Beagle stated the applicant was notified of specific information that was requested to be provided and gave the dates of request below:

· January 2, 2009, initial application received with a simple site plan, but did not include descriptive text which resulted in the application being pulled from the February 9, 2009 agenda.

· January 16, 2009, the applicant was informed of the continuance and the need for a detailed plan of operation.

· January 29, 2009, the applicant submitted an Operating Plan for Lake Edun, which is part of tonight’s packet.

· February 14, 2009, after review of the Operating Plan, the Planning Department sent a follow-up letter requesting additional clarification by February 23, 2009.

· March 2, 2009, no response was received from the applicant regarding clarification so a staff report was prepared based on the material received at that point.

Mr. Beagle addressed each of the deficiencies/issues regarding the consideration of the proposal.

· Operational times are from Memorial Day to Labor Day with an estimation of not more than 50 people being on the site at any time during normal operating hours, except for planned special events. The plan does not address operating hours and was requested to supply specific opening and closing times.

· There would be five (5) planned events each year, each anticipated to draw more than 100 people and to last not more than a 48 hour duration. Past events have drawn up to 700 people and the impacts of noise, traffic and extended hours of operation are expected to be a major intrusion into the rural character of the area.

· A permanent public address system nor sound system will not be used that could be heard at the closest property line, except for planned events. During those events the applicant proposes a noise standard of not more than 5 decibels greater than ambient sound, which is considered a nebulous standard by the Planning Department. Mr. Beagle discussed ambient sound, and said the noise generated by such large crowds may be a nuisance by itself even before adding additional sound associated with a sound system. Absent an objective measure, the only criteria to address sound impact is the affect of operating the facility until 10:00 pm, Sunday through Thursday, and 12:00 pm Friday and Saturday. Limited attendance could be imposed, but would be difficult to enforce; days and hours could be restricted and the use of sound system could be prohibited; but the applicant has not responded to the issue at this point.

· The applicant proposes 100 foot setbacks for the north, south and west property lines and indicates thick, natural vegetation provides for adequate privacy to that of adjoining properties. The Planning Department has asked the applicant identify the thick vegetation on the site plan, and requests the applicant provide for perpetual maintenance of the areas, but the applicant has not responded to the request.

· The applicant claims an existing 6-8 foot berm along SW Indian Hills Road provides an effective buffer, however the Planning Department finds the berm is insufficient to screen the interior of the property and permits an unfettered view into the property. The applicant was requested to identify the extent, type and density of existing vegetation along the roadway that would comprise the buffer, however, the applicant has not responded to the request.

· Access will be restricted to a single drive approach located along the northern one quarter of the property, which has a parking area with a small gravel area and the balance of the parking area is intended to remain in grass or dirt. The parking area identified on the site plan notes a maximum capacity of 270 vehicles. To minimize the tracking of dirt and mud on SW Indian Hills Road, it is recommended the applicant gravel the first 50 spaces of the parking area, which the applicant has not responded to.

· The applicant was requested to provide a vegetative buffer along SW Indian Hills Road to minimize the impact of a large parking area on effacing residential property. The applicant has not responded to the request.

· It is indicated a caretaker will be on-site for a planned activity, however, the Planning Department requests a caretaker be on-site whenever the facility is open. The applicant has not responded to this request.

· Guidelines and restrictions were requested for overnight campers and the maximum number of campers or camp sites that would accommodated. The applicant has not responded to this request.

· The planned events are the biggest issue associated with the proposed CUP, as each event is expected to draw more than 100 people. The applicant states the maximum capacity is untested, although previous events have drawn more than 700 people. No operational hours have been specified for the planned events, only to say that when a sound system is used, it will cease to be in operation by 10:00 pm, Sunday through Thursday, and 12:00 pm Friday and Saturday. A lack of understanding as to what the planned activities would entail and the above concerns lead staff to view this as a potential for a major disruption for the rural area.

· The Operating Plan provides for limited concession sales of beverages and snacks, including a prohibition of sales of alcoholic beverages. The applicant was asked if visitors would be allowed to bring food and snacks onto the property, including alcoholic beverages. Not knowing the guidelines for behavior, the Planning Department expressed concern to the applicant about allowing visitors to bring alcoholic beverages onto the property. The applicant has not responded to this request.

· The Shawnee County Health Agency has determined a connection to a public water supply is required as well as a permanent on-site sewage system. The applicant’s proposal made no provision for connection to a public water supply and proposes sewage disposal to be provided by commercial port-a-potties. Because of expenses associated with the improvements, the applicant indicated the requirements would dramatically alter his proposal. A revised operating plan and site plan noting such improvements has not been received to date.

Concluding his report, Mr. Beagle said each issue identified is a contributing factor that defines the character and scope of operation of the facility and is necessary to determine compatibility with the surrounding property. No judgment was made with respect to the fact the facility is clothing-free, except to limit the opportunity of those on the outside viewing the visitors patronizing the facility. With the lack of information provided by the applicant and the identified issues, staff is recommending Disapproval of the Conditional Use Permit.

There were no questions of Mr. Beagle by commission members. Mr. Macfee then called for a presentation from the applicant.

Mr. Webb Garlinghouse, applicant, addressed the commission and apologized for requesting a continuance as he was not aware of a waiver that was possible regarding the Health Department requirements until about 2 weeks ago. He gave at time frame regarding communications with the Health Department stating it occurred to him a continuance would be in his best interest. Mr. Garlinghouse said he was waiting to hear what the Health Department had to say regarding his waiver before responding to Mr. Beagle’s various requests.

Mr. Garlinghouse stated he believes he has been responsive to staff’s requests and said the application submitted on January 2, 2009 did include an operating plan and guidelines for behavior and was probably lost by staff. He indicated he had guidelines for behavior with him, but did not bring copies for commission members as he was anticipating a continuance.

Mr. Garlinghouse said their proposal of a CUP has low impact usage and blends well with the neighborhood and provides a place where like-minded people may relax and enjoy the sun. He said the current proposal for a CUP has more restrictions that have been proposed by staff and believes they have been singled out for special treatment by the county.

Mr. Macfee interrupted Mr. Garlinghouse in order to extend his speaking time, motioned by Mr. Macfee, second by Mr. Henriksen and a unanimous voice vote, was approved for another 3 minutes.

Mr. Garlinghouse provided detail about a 2006 planned event political gathering and how the County Counselor chose to station the Sheriff’s Office in front of the gate and prevented anyone from coming upon his land and felt that was outrageous. The following year an event titled “Evening In The Country” was planned, which is a summer picnic for families and commented many public officials attended the event including lawyers, judges, probably Planning Commission members, County Commissioners, a Governor of the State and various Senators. While the County Counselor did not shut the even down, he was informed he could have because they did not have a Conditional Use Permit.

Mr. Garlinghouse believes staff has focused on the number of 700 attendants to presume that is the attendance standard for any special event, but stated there is no zoning or Conditional Use Permit for the annual south 40 musical festival held in Shawnee County.

He said they have a very large parking lot that is theoretically capable of accommodating 270 vehicles, but they have never had close to that number at any one time. He is not opposed to a vegetative buffer to minimize the impact of the large parking area, but approximately 1 year ago someone sprayed an herbicide on much of the vegetation. He is not anxious to be responsible to replace plantings whose only purpose is to shield a side of about a dozen vehicles or fewer.

Mr. Garlinghouse said he relayed to staff that 50 visitors during a summer weekend is considered busy, but staff has interpreted his comments as there is always 50 people on-site, which is why staff is requesting gravel for 50 vehicles.

Mr. Macfee interrupted Mr. Garlinghouse to allow for more time to present his comments. Mr. Young motioned for 3 additional minutes, second by Mr. Johnson and by a unanimous voice vote was approved.

Mr. Garlinghouse said the operation is weather related and during bad weather no one is there and having gravel to protect the parking lot is probably not necessary as they want grass versus gravel to maintain the area in its natural state. Mr. Garlinghouse said the county does not impose an on-site parking requirement for the Tulip Festival which is held on property zoned as their property is.

Aside from guns and cameras, Mr. Garlinghouse proposes that visitors be able to bring anything that is legal in Shawnee County, which is true for the Designer Showcase which was previously held.

Staff focused on retail sales of food and other items, which is baffling to Mr. Garlinghouse as he has stated it is a minor issue and if the issue is a problem he will do away with the request, but all he has is convenience items.

Staff is requesting him to define a minutia of operations, which could allow for a trivial element not to be addressed, creating a problem, or else they want everything to be addressed. The 700 people in past attendance is not the norm and has been taken out of context by staff and used as justification to require more stringent requirements and it creates a hostile relationship.

Staff requires specific hours of operation, however, everyone is different for each event, as some visitors may arrive at 5:00 am for fishing and others may remain until midnight.

Staff asks for restrictions and guidelines for overnight campers; they are covered in the guidelines for behavior, which was given to staff. Staff wants to know what campers are allowed and not allowed to do when setting up a camp site, which is absurd; is the applicant to designate how many tent pegs are to be put into the ground, etc.

Staff requests the maximum amount of overnight campers or campsites that will be allowed, which is a Catch 22. If a low number is provided and then exceeded, they are in violation, if a high number is stated they trigger onerous additional health and safety issues.

Staff is concerned about planned events that may draw up to 100 people, which by most is not considered heavy usage.

They would like to continue to hold the “Return to Edun” event, which caused a lot of controversy in the first place and would also like to have the option to hold their “Evening In The Country” party. They are occasionally approached for weddings, Boy Scout campouts and events for Washburn groups.

Staff requests the identification of density and type of vegetation in various places on the property, and while they have planted thousands of trees over the years, they have permitted God to plant other species of vegetation, with much of his works constituting a living fence. To agree to replace a specific tree or plant that might die when hundreds of others are growing causes serious disagreement.

Mr. Garlinghouse said surrounding neighbors have amplified sound, such as TV’s, radios, IPOD’s and other sources of amplified sound, and at least one neighbor hosts a band practice whose sound is far greater than any sound they have had on their property. If neighbors have not complained about the band sound, but complained about theirs, a double standard exists. He said they are offering a specific measurable standard; during planned events sound levels at their property line will not be greater than 5 decibels over ambient sound levels. Staffs allegation that the sound levels are not measurable is incorrect as inexpensive dB meters are easily available. The ambient sound level is that sound created by Gods existing creatures such as crickets, frogs, birds, etc. Staff’s asks they substitute unmeasurable subjective standards such as “does not constitute a nuisance with respect to neighboring property”, which would allow any neighbor to shut down any event for any reason, and that provision is untenable.

Staff’s requirement of connection to a public water supply has been discussed; however, the Sunflower Soccer Association does not connect to a public water supply and does not have a permanent on-site sewage system.

Mr. Garlinghouse concluded his comments by stating since their purchase in 1983 they have worked hard to make it a showplace the county can be proud of, and he explained how their activities do not negatively affect property values, does not believe their activities generate traffic problems.

Mr. Henriksen asked Mr. Garlinghouse if he was talking about 2 specific planned events, with the possibility of holding 5 events each year. Mr. Garlinghouse stated he may not have 5 events each year, but wants the opportunity to hold 5 events each year.

Mr. Murray asked Mr. Garlinghouse that since their original CUP expired in 2002, what has occurred from then to present and why did he not seek another CUP before now. Mr. Garlinghouse said they have not had any “Return To Edun” events in the past and they have not held any events during the past 7 years.

Ms. Johnson asked Mr. Garlinghouse why he did not respond to staff’s requests and he said because he anticipated a Waiver to the Health Department and depending on what he heard, that would impact his response to staff’s request. Discussion continued with Ms. Johnson, Mr. Garlinghouse and Mr. Beagle about the time line of submittal of the application and requests of staff resulting with Mr. Garlinghouse stating he thought he was being responsive to staff’s requests.

Mr. Macfee also stated he did not see what kept Mr. Garlinghouse from responding to staff’s request. Mr. Garlinghouse said he thought a non-response would result in another continuance.

Ms. Johnson asked Mr. Garlinghouse to verify his position of a non response, to which Mr. Garlinghouse stated he interpreted a non response to staff’s requests would result in a continuance.

Mr. Murray asked Mr. Beagle what differentiated Lake Edun from the Tulip Festival, Designer Showcase, etc as it relates to a Conditional Use Permit. Mr. Beagle stated Mr. Garlinghouse’s proposal involves daily activities as distinguished from other temporary events which may occur once or twice a year for a limited number of days. There is no provision within the current regulations with regard to the temporary use of land, such as the Tulip Festival, etc, and issues regarding nuisance are left to the Sheriff’s Office. Mr. Garlinghouse’s facility would be open to the public every day of the week which constitutes a commercial activity subject to compliance with the zoning regulations.

Mr. Macfee opened the hearing for public comment and asked first for comments of anyone in favor of the agenda item, of which there were none. Mr. Macfee then called for comments in opposition to the proposal. The following individuals spoke in opposition to the proposal and offered the following concerns and comments.

· Dennis Johnson, 5725 SW Indian Hills Rd, Topeka, KS 66610

· Toni Stewart, 5036 SW Indian Hills Rd., Topeka, KS 66610

· Steve Addington, 5330 SW Indian Hills Rd., Topeka, KS 66610

· Dave Brown, 5406 SW Indian Hills Rd., Topeka, KS 66610

· Mark Mikoleit, 5802 SW Indian Hills Rd., Topeka, KS 66610

· Rachel Gathers, 5525 SW Auburn Rd., Topeka, KS 66610

· Edna Bennett, 7850 SW 53^rd St., Topeka, KS 66610

o Clothing free operation is not an issue, but is concerned there are no guidelines for alcohol being sold.

o Parking lot is not sufficient for the stated number of cars and one member provided dimensions of a newly built parking lot which demonstrated the parking lot could not hold the indicated 270 vehicles.

o Area is not improved where the parking lot is proposed and is full of cedar trees and brush and if the CUP is approved, the parking lot would need to be improved.

o There is no commitment to time restrictions.

o There is concern about the sound standard, noting staff’s term of “nebulous”. Mr. Garlinghouse definition of ambient sound being that of the quiet sound of nature is questionable as neighbors can hear people having fun, which is great, but the fact that a sound system will be used and is not controlled is a concern. There is a concern as to how sound will be measured even with a meter.

o Size of events is an issue, and even with 65 acres, there is a concentration of visitors on the east side of the lake, not randomly scattered throughout the area.

o An important concern is the recreation operation, which is uncharacteristic to the rural conditions of the neighborhood as residents have an expectation of a rural setting that includes the quiet and solitude of a country side.

Mr. Young motioned for one (1) additional minute of time for Mr. Johnson, second by Mr. Henriksen, and approved by a unanimous voice vote.

o Many out-of-state vehicles come to the events generating a large attendance.

Mr. Henriksen motioned to allow the Chair to use his discretion to extend additional time to speakers, second by Mr. Murray, and approved by a unanimous voice vote.

o There has been parking as far as one-half mile away from some events.

o Visitors do not want to carry clothes onto the site, so they undress in their cars and walk to the lake, which is offensive to some neighbors.

o Events draw many visitors, some out-of-state, which does not allow for neighbors to track who is in the area and neighbors try to keep a watch on their neighborhood.

o One area resident gave a detailed explanation regarding a family member and an incident that occurred in the past, which was tied to a visitor at Lake Edun and ended with a report being filed with the Sheriff’s Office.

o Trash is horrendous and after an event cleanup is required.

o There is no accountability as to who is on the property and who is in the neighborhood, which raises a safety concern for residents.

o There have been large parties at the site since 2001 and there have been a few times when area residents have been approached by visitors, sometimes at late hours for phone usage, etc.

o Additional traffic is a concern.

o The site has been used for various activities in the past and cars are present daily, with events going on routinely and cars coming and going in the middle of the night, around 10:00, 11:00, 12:00 midnight. It is not uncommon to see 10-20 cars at the site on the weekends.

o Vegetation on SW Indian Hills Road is not dense and one can plainly see through it as it does not cover the activities they have on site, which is visible by youth who ride their bikes in the neighborhood. It was determined there is approximately 75-100 feet from the road to the lake.

o Even without a special permit, the applicant continues to hold activities at their site every weekend, with a lot of out-of-state and out-of-county tags.

o It is believed the activity of Lake Edun lowers property values.

o Music can be heard from events at Lake Edun one (1) mile away on Auburn Road.

o Continued operation without a special permit is a factor and membership fees are collected, as noted on a current website that has a link for paying membership fees and lists activities that ran from January through December of 2008.

o If a special permit is granted, it should include closely monitored conditions that include litter pickup, a visually appealing privacy fence, a noise ordinance should be enforced after 9:00 pm as well as no profanity, foul language or sexual content and patrons should have to remain on the Garlinghouse property. For safety reasons, a background check should be conducted on visitors to assure no violent offenders are present.

Mr. Macfee then asked Mr. Garlinghouse if he would like to offer any rebuttal comments. Mr. Garlinghouse stated there is band practice at a house across the street and stated he approached the neighbor about the noise and reached an agreement as to when practice would take place. He stated for the last 3-4 years there has not been a band on his property playing amplified music and the music heard is from a different place. Mr. Garlinghouse stated their parking lot is huge and is overgrown with a lot of cedar trees, which has been allowed because the lot has never been filled up, or close to being filled up. People do not generally park on the street and cars are not parked one-half mile away. The issue of disrobing and walking around the area naked can happen anywhere in Shawnee County, and if brought to their attention, that will be the patrons last visit and anyone engaged in any kind of sexual activity in public is not tolerated. The last time 700 people were on the property was in 1995 and that does not happen anymore and the “Evening In The Country” party would only draw about a couple of hundred people. Addressing litter issues, they provide trash cans all over the site and doubts their visitors contribute to the problem as they tend to be naturists. A background check is conducted on anyone who joins the Lake Edun Foundation, but commission members should keep in mind Mr. Garlinghouse is talking about Lake Edun and there is another organization called the Lake Edun Foundation. The Lake Edun Foundation exists in a PO Box, and has a website and he is not here representing the Lake Edun Foundation, but representing his wife and himself as property owners of some land that has a lake on it that is coincidentally called Lake Edun and it is not the Lake Edun Foundation. Mr. Garlinghouse said the Lake Edun Foundation does have a membership, but they do not.

Mr. Murray asked for Mr. Garlinghouse to explain the difference between the Lake Edun Foundation and his operation. Mr. Garlinghouse said they have a clothing-free operation with a lake on it that visitors frequent for a good time, and the Lake Edun Foundation is an educational not for profit foundation, 501 (c) (3). Mr. Murray asked who the board of directors were and Mr. Garlinghouse provided a name for the president of the board. Mr. Murray relayed the public has informed commission members there has been ongoing activity, but Mr. Garlinghouse previously denied that. Mr. Garlinghouse said between 2002 and 2009 he has had a lot of parties at his home and at the land, which he believes is legal.

Ms. Johnson asked Mr. Garlinghouse if one could come onto his land if one is not a member of the foundation, and Mr. Garlinghouse replied one could as an invited guest. Mr. Garlinghouse also stated if one is a member of the foundation he knows they have been prescreened so his level of concern is less than if a stranger were to come onto the site.

Discussion continued amongst commission members relating to the invited guests on Mr. Garlinghouse’s property, which he estimated at approximately 10-20 people on the weekends for various activities and the link between the Lake Edun Foundation and Lake Edun, which is confusing, as Mr. Garlinghouse contends they are separate and not tied together.

Mr. Macfee closed the public hearing and called for discussion amongst commission members. Mr. Murray stated there are too many unanswered questions, unresponsiveness to Mr. Beagle’s requests, and with the testimony heard tonight he would be voting “No”. Ms. Johnson said the unresponsiveness to staff is unacceptable and she is confused over the foundation and the lake and also intends to vote “No”. Mr. Macfee stated he agrees with the other two commissioners, and it is unfortunate the applicant thought a non response to staff’s request would automatically continue the item, however, members from the public were present to speak on the item and he would be voting “No” as well. Mr. Young agrees with comments of the previous commission members and putting aside the confusing situation of the foundation and its relationship with the property, from a safety standpoint regarding traffic to and from the site he would be voting “No”. Mr. Macfee encouraged the applicant to address all the requests of staff before they present their proposal to County Commissioners.

Mr. Murray motioned for Disapproval of the application, second by Mr. Young, with clarification that a Yes vote is for Disapproval of the CUP. With a vote of 6-0-0 the Planning Commission recommended the Conditional Use Permit be Disapproved.

A break was taken at 7:53 pm and the meeting resumed at 8:06 pm.

2. CU09/03 by Metropolitan Topeka Airport Authority requesting Conditional Use Permit, on behalf of the Shawnee County Sheriff’s Office, to establish a law enforcement firing range and training facility on property currently zoned “RR-1” Residential Reserve District and located north of SE 77^th Street and west of SE California Avenue on Forbes Field in Williamsport Township.

Mr. Beagle presented the staff report stating the application was filed on behalf of the Shawnee County Sheriff's Office seeking to establish a firearms qualification training range and facility at the property. The property is accessible only by SE California Avenue that terminates at the southern boundary of Forbes Field in a fence secured area. The site itself is located approximately 260 feet interior to the perimeter of the fence and is approximately 5 ½ acres in size. The outdoor range is only intended for law enforcement personnel and will not be open to the general public. The Shawnee County Sheriff's Office seeks the flexibility to use the range any day of the week between the hours of 6:00 am to 12:00 midnight with a certified range officer being present any time the range is in use.

The facility will be confined to a fence enclosed area accessible by the northern terminus of California Avenue and would include a 3,200 square foot classroom/storage building and a 100 yard firing range. The surrounding area is predominately rural in character, comprised of undeveloped land as well as the land area of Forbes Field. The proposed range appears to be consistent with the rural character of the area. The undeveloped area, which is south of the property, is projected to develop for industrial land use. The operational characteristics of the outdoor range will largely be absorbed by Forbes Field to the north and west, and the undeveloped land to the south and east which also will provide a spatial buffer between the operation of the range and residential properties located on the south side of SE 77^th Street.

Given the distance of 1,950 feet of separation between the range and the nearest residence on SE 77^th Street, it is questionable the range will result in any perceptible increase in noise beyond that which is generated by Forbes Field and Heartland Park Raceway.

The outdoor range will be designed and constructed by a qualified contractor familiar with outdoor shooting ranges and will include the safety features of 10 foot concrete side walls that will run the length of the firing range, a 20 foot tall impact berm at the end of the range with a built in ballistic rubber bullet trap. The proposed use is not anticipated to have conflict with the use and development of area properties, therefore, staff is recommending Approval of the Conditional Use Permit subject to the 9 conditions outlined in the staff report.

Undersheriff Scott Holladay, representative for the Shawnee County Sheriff's Office spoke to commission members stating the Sheriff’s Office has been seeking a to build a range for the past three (3) years for their agency to maintain their firearms qualifications and proficiency that are required by the state. The range will be a 100 yard range that will have 10 foot concrete sidewall walls and a 20 foot tall earthen impact berm, topped by a 10 foot ballistic wall, so the overall height of the impact area will be 30 feet, with the impact area absorbing the bullets striking it. A training building will be at the east end and will be used as a training facility and to operate the firing range with a certified range officer on site. The facility will only be used by law enforcement personnel and will be used from 6:00 am to midnight, although the number of times they will shoot that late at night will be minimal, and the range will predominately be used between the hours of 8:00 am to 5:00 pm. Undersheriff Holladay detailed the types of firearms that would be used at the facility. The Shawnee County Sheriff's Office has received support from Heartland Park, the MTAA, approval from the Federal Transportation Security Administration, a letter of recommendation from the 190^th Air Refueling Wing and is currently working with the FAA for their approval of the actual design of the site.

Mr. Young stated he wanted to applaud Sheriff Barta and the agency as they have taken commission member comments from the two previous applications and carried them forward into this application, to which Mr. Macfee said he agreed.

Undersheriff Holladay stated Mr. Brandt Elwell with TSR Range Services, their consulting firm is present for any questions members may have. Mr. Holladay stated there is almost 2,000 feet to the residences and in between the 2 areas there is a significant area of trees that not only serve as a site buffer, but would also mitigate sound. Regarding security, Undersheriff Holladay stated an alarm system would be installed for the building as well as motion detectors, and with respect to access to the facility the Sheriff's Office intends for the entire facility to be within an 8 or 9 foot chain linked fence with barbed-wire across the top to keep people out, which addresses concerns the Transportation Security Administration had in that site will not have ready access onto the airport. It is not intended for guns be stored at the site and the MTAA provides security forces both from the 190^th and the MTAA who travel the perimeter road numerous times during the day.

In response to a question from Ms. Johnson, Undersheriff Holladay said they would be entering into a long term lease agreement with the MTAA and anticipate spending up to a million dollars on building the facility without spending tax dollars to do so.

Mr. Macfee opened the hearing for public comment and no one was present to speak in favor or in opposition to the proposal.

Mr. Jerry Baker, 7920 SE Adams Street, spoke to commission members stating he was not in favor or opposition to the proposal, but asked if the facility will affect neighbor’s property taxes and asked if state wide law enforcement would use the facility as well as military personnel. He is also concerned about lead removal.

Mr. Macfee directed the questions to Undersheriff Holliday stating he would not be able to respond to the property tax question and the range would be used by law enforcement only, but they would make it available to the 190^th security forces and any other agencies invited to the range would be law enforcement only and for the most part would be local agencies. Regarding lead removal, the rubber impact area has the benefit of the material being able to be readily taken back out of the berm and can be sifted to remove the lead from it, which will be removed on a scheduled basis. The plan is also designed so no lead will be able to get into the earthen berm to become a contaminate and described how any amount of lead leaving the site is at a minimum.

Mr. Murray asked about errant rounds and provisions for them. Undersheriff Holladay said the 10 foot sidewalls and a 30 foot berm, the design of the range area and the down range area minimizes that concern. He can’t say a round cannot leave the range, but the only way a round will leave the range is if it is not shot in accordance with their policies.

Public hearing was closed by Mr. Macfee and there was no other discussion by members.

Mr. Young motioned to recommend approval of the proposal subject to staff conditions, second by Ms. Johnson. The motion was APPROVED by a vote of 6-0-0.

3. SP91/04A A by Mid States Materials, LLC requesting to amend the Special Use Permit to establish an asphalt plant and ready mix concrete plant on property zoned “RA-1” Rural Agriculture District and located on the north side of SE 45^th Street at the Shawnee/Douglas County line in Tecumseh Township.

Mr. Beagle presented the staff report noting the applicant’s request to amend the Big Springs Quarry special use permit to accommodate the additional use of an asphalt plant and concrete ready mix plant on a 20-acre portion of the 385-acre Big Springs Quarry. The quarry was authorized in 1991 and extends approximately ½ mile north of SE 45^th Street between SE Stubbs Road and the Douglas/Shawnee County line and ¼ mile south of SE 45^th between SE Herschel Road and the county line. The site was acquired in 1988 by Shawnee County as one of the last known deposits of construction quality limestone in Shawnee County. The County followed in 1991 by initiating application request for a Special Use Permit to authorize the use of the property as a rock quarry. The first operator for the quarry was Martin-Marietta Aggregates and was recently transferred to Mid state Materials, the current owner. Big Springs Quarry spans the county line and includes an even larger area in Douglas County, also owned and operated by Mid States Materials. The Special Use Permit authorizing the quarry is scheduled to expire in Shawnee County in 2021.

There are two points of access to the quarry, both located in Douglas County with the southern entrance located on SE 45^th Road, just across the Shawnee County line and continues north to the second entrance on US Highway 40, approximately two (2) miles to the north. According to the Conditional Use Permit granted by Douglas County, the bulk of truck traffic associated with the operation is expected to use US Highway 40 for its access and only local projects within the township incorporating the rock quarry within Douglas County would be allowed to utilize the southern entrance off SE 45^th Street. Essentially all traffic is to use US Highway 40 except for local projects that are used within the immediate adjoining township.

Quarry operations are subject to a 150 foot setback along SE 45^th Street which also includes construction of an earthen berm along the roadway, and, a 50-foot setback around all other property lines.

Bettis Asphalt, that seeks to lease the 20-acre site from Mid-States Materials, recently acquired the asphalt plants from Andrews Asphalt and proposes to relocate one of the plants to the subject property. The subject property has an earthen berm along SE 45^th Street to the south and adjacent to the entrance along the Shawnee/Douglas county line.

Mr. Beagle noted that the proposed location of the asphalt plant to SE 45^th Street will be setback approximately 300-feet from the roadway. He also stated the applicant intends to honor the terms of the Special Permit that was granted in 1990 and acknowledges all activity will expire by 2021.

The earthen berm along SE 45^th Street ranges from 22-feet to 35-feet in height and for the most part the asphalt plant will pose a minimal visual impact to the roadway and the applicant has stated if needed, additional plantings could be provided across the top of the berm for an additional buffer. There will be a minimal view of the two (2) silos, the tallest part of the asphalt plant, as viewed from the roadway given the plants setback from SE 45^th Street and the presence of the berm along the roadway.

The plant currently maintains state and federal permits for emission controls and approval of the amendment requires continued compliance of the permits. It is not anticipated that the noise will be any more onerous than the general activity associated with rock quarry and the operation of the rock crushing plant to the northeast of the site. The applicant will present information regarding truck traffic in their presentation and Mr. Tom Vlach, Director of Public Works is present for questions.

Staff believes the proposal is compatible with the surrounding area and is recommending Approval subject to the conditions listed in the staff report.

Mr. Macfee questioned Mr. Beagle about condition #5 on the staff report, which refers to the plant’s be equipped with properly designed sound arrestors. Mr. Beagle said he would have the applicant address that condition, but the intent is to minimize to the greatest extent possible the generation of noise due to the operation of the plant’s.

Mr. John Hutton, attorney and representative for Mid-States Materials and Bettis Asphalt stated he was joined by Mr. Kevin Holland, with Cook, Flatt and Strobel Engineering; Mr. Joe Nasseri, an environmental consultant; Mr. Eric Bettis, President of Bettis Asphalt and manager of Mid States Materials; and, Mr. Ryan Randall, Operations Manager with Bettis Asphalt who are available to answer any questions commissioners may have.

Mr. Hutton gave an overview of the proposal stating the quarry has been in existence since 1991 and his client took the site over in July of 2007 both in Douglas and Shawnee County. Bettis Asphalt and Construction was incorporated in 1979 and has operated an asphalt plant for 30 years and presently operates an asphalt plant at I-70 & MacVicar Street. He also stated approximately 2 months ago his client purchased an asphalt plant from Andews Asphalt & Construction and now owns the asphalt plant at NW Menoken Road.

Mr. Hutton said they are proposing an E400 Drum Mix Asphalt plant and provided a visual display of the existing plant they are proposing to move to the subject property. The quarry site presently has approximately 650,000 tons of crushed aggregate that leaves the facility, however the number changes due to economic conditions. The aggregate is conveyed by truck, which creates a significant amount of truck traffic and has done so for approximately 18 years. Mr. Hutton concluded his comments and noted Mr. Holland was the next speaker.

Mr. Holland of Cook, Flatt & Strobel Engineering stated he also represents Bettis Asphalt and Mid States Materials, LLC. Mr. Holland had provided Mr. Beagle with a power point presentation and described slides for members specifically addressing truck traffic stating there is presently an average of 115 in and 115 trucks out every day. Bettis Asphalt is relocating an existing asphalt plant for efficiency purposes as materials can now be taken on-site, trucks can be dumped off, and fully loaded asphalt trucks, using the same trucks can be used for a two (2) load process. US Highway 40 has an average traffic load of 2,540 ADT with 285 of those being trucks, and SE 45^th Street has an average traffic load of 2,150 ADT, but KDOT does not have a breakdown of trucks at the location. Mr. Holland used a slide to show how US Highway 40 and SE 45^th Street both have right and left turn lanes into the site and from an engineering and traffic perspective they are heavily over-designed. He also said for the intersection to fail the amount of trucks would have to double, increasing the total to approximately 4100 trucks per day on top of the daily traffic trips of 2,540 on US Highway 40, which is where 75% of all trucks will use the entrance. He noted that SE 45^th Street will be used by trucks that are going to specified asphalt operations. Mr. Holland presented a slide that showed both US Highway 40 and SE 45^th Street, the gated entrance to the site and the turn lanes into the site. Mr. Holland relayed the closest resident to the Bettis plant at I-70 and MacVicar is 1,800 feet and the closest resident to the proposed site is 3,900 feet, which gives a greater distance for addressing noise and odor.

Ms. Johnson asked about leaving the site at US 40 Highway and if there was a blind corner if one was turning right. Mr. Holland said there would be one to some degree as it is a limited visual corner, but there is a right turn lane to allow a vehicle to accelerate up to speed as well as a bypass lane and the speed is 50 miles per hour.

Mr. Young stated the amount of traffic is a concern, however, the number of trucks is not as great a concern as the speed of trucks. Mr. Young said one Saturday he clocked the trucks on his road with a stopwatch and they reached speeds of 70 MPH. He asked if there is a way the operator can penalize a driver who has been ticketed for speeding either to or from their facility. Mr. Hutton commented the quarry is not open on Saturday, and Mr. Young asked if that is the present situation, or has the site been open in the past on Saturday’s. Mr. Bettis said that since they’ve operated the rock quarry no trucks leave the facility on Saturday. Mr. Hutton said most trucks are independent contractor trucks, which they have no control over. Mr. Young commented he knows that truck drivers get paid by the number of loads they haul in a day and speed is a factor and he has been trying to assess a way to slow the drivers down as the trucks speed not only on Saturday’s, but other days as well.

Mr. Holland relayed to Mr. Young that US Highway 40 is used the majority of the time by truckers and SE 45^th Street is used at times, but Mr. Young relayed the drivers are not using SE 45^th Street, they are using SE 61^st Street because they know it is not patrolled as heavily.

Mr. Nasseri stated he represents Bettis Asphalt and Mid States Materials, and has many years experience in compliance matters in the environmental field. He also said air polluting industries are regulated by state, county and federal agencies and they apply specific regulations to assure industries remain compliant including specific rules that apply to asphalt operations. He also said the special permit is a binding authority for Bettis Asphalt and the quarry and specifies what type of activities and reports are needed to assure compliance with environmental standards. He provided detailed accounts of the controls for asphalt plants and how they are measured.

Mr. Macfee opened the public hearing and asked for comments of those wishing to speak in favor of the proposal. With no one appearing in favor, Mr. Macfee then called for comments from those wishing to speak in opposition to the proposal. The following individuals spoke in opposition to the proposal and offered the following comments.

· Bart Christian, 1719 E 150 Road, Lecompton, KS 66050

· Milton Norwood, 99 Hwy 40, Lecompton, KS 66050

· Gary Henderson, 30 Highway 40, Lecompton, KS 66050

· Rick Keathley, 6028 SE 45^th St., Tecumseh, KS 66542

· Ed Peck, 3236 SE Stubbs Rd., Tecumseh, KS 66542

· Rhonda Henderson, 30 Highway 40, Topeka, KS 66601

§ Concerned about safety of the roads and the entrance into and out of the quarry as the roads are unimproved and US Highway 40 has deep drop offs and no shoulders, and SE 45^th Street is also unimproved.

o The proposed increased number of trucks on the road is also a concern.

o Is concerned the applicant may in the future request to double the proposed truck load or the possibility the other asphalt plant may close down and that truck traffic would be added to the proposed site.

o Concerned the plant will operate on Saturday and the affect of the traffic not only in Shawnee County, but Douglas County as well.

o US Highway 40 has many bad spots, including some blind spots, which is a safety issue with the present trucks on the road, much less an increase of trucks.

o Trucks are coming out of the quarry and are then taking a shortcut using E50 Road, which is a gravel road to Highway 40, and E50 Road is a narrow road and the dirt/dust is thick and causes problems.

o Coming out of the quarry onto US Highway 40 there is a STOP sign, however, some trucks do not obey the sign and just keep going if there is no viewable traffic in sight.

o Trucks do not obey the speed limit on US Highway 40 and are often times speeding.

o Noise is a factor as trucks use their Jake Brakes when coming into the site, and the noise in general from the trucks that are presently using US Highway 40 and an increase in truck traffic will only compound the problem.

o The drive into the quarry is a dirt road and causes a lot of dust.

o Trucks speed on SE 45^th Street.

o The entrance on SE 45^th Street is in Douglas County and the road had a blind spot and the entrance on US Highway 40 is in Shawnee County and there is a winding curve, which causes concern.

o Concerned about the additional truck traffic with the school buses that are on the road.

o At one time US Highway 40 was listed in the top 10 of the most safest roads in Kansas and is concerned about the safety with the addition of more trucks on the road.

o The asphalt plant should have some responsibility regarding the trucks on road and the reported speeding, and they should be responsible for the trucks not using E50 Road and they should educate and conduct enforcement for the drivers.

o US Highway 40 is used as a school bus route and Lecompton Township also uses the road.

Bonnie Nichols, 2823 SW Burlingame Road, Topeka, KS 66611 stated she was not in opposition and offered the following comments:

o She owns property in Douglas County and has lived there 41 years at the curve that has been mentioned as a bad spot on US Highway 40 and there has been many accidents on the highway due to speed, weather conditions, drinking, etc but cannot recall an accident with a truck since the quarry has been opened.

o She believes Mr. Bettis is doing a good job and the asphalt plant is needed for its business.

Ed Peck, 6028 SE 45^th Street, Tecumseh, KS stated he is neutral with the proposal and offered the following comments:

o Mr. Bettis had done a much better job of running the plant than Martin-Marietta and he believes Mr. Bettis has inherited problems from Martin-Marietta.

o Questioned what are the plant’s operating hours are?

o Would like clarification on the odor issue.

o There is concern about the additional truck traffic and truck drivers obeying traffic signs and speed limits, which he sees as a law enforcement issue.

Mr. Beagle stated the operating hours would be Monday through Saturday, 6:00 am to 10:00 pm and they would be allowed to operate on Saturday according the Special Use Permit for the rock quarry. Mr. Beagle relayed there is a distinction between the Shawnee County and Douglas County Special Use Permits, as the Douglas County Special Use Permit does not appear to allow for Saturday operations, however, the Shawnee County Special Permit does.

Mr. Eric Bettis, 1132 SW Chetopa Trail, Topeka, KS, stated they operate on a job-to-job basis and if project requirements need for them to operate within a given work schedule, they would like to maintain that flexibility, and noted the example of SW Wanamaker Road, which required them to work overnight. It is not common practice for them to run every Saturday and there has not been any activity that would have generated any truck traffic from his facility. Mr. Bettis relayed he is not aware of any truck accidents since he has been involved with the Big Springs Quarry, which was from July of 2007.

Mr. Tom Vlach, Director of Shawnee County Public Works Department, stated he is not aware of any truck accidents on SE 45^th Street and US Highway 40 is under the jurisdiction of the Kansas Department of Transportation and he does not have that information.

Ms. Johnson questioned the entrance and the turning lanes at the proposed site, and Mr. Holland stated the lanes allow for the trucks coming out of the site to gain speed before they merge into traffic and SE 45^th Street and US Highway 40 are fully improved roadways and entrances.

Mr. Henriksen asked if the trucks were arriving full and leaving full and if that was being done to minimize the amount of truck trips on the road. Mr. Bettis and Mr. Hutton detailed the operation as to how the trucks would arrive empty and leave full with product from the site.

Mr. Murray referenced the letter from the Douglas County Administrator, and read part of the letter, which listed a condition relating to local deliveries in Douglas County restricted to a seven (7) mile area of the quarry. Mr. Bettis said currently, their Douglas County permit does not allow them to haul aggregate into Douglas County on SE 45^th Street, and in Mr. Murray reading the letter he believes Douglas County is trying to say they want to maintain that current restriction, and also wants to place the same restriction in hauling asphalt into that area, and he is willing to accept that condition. He said 75% of their traffic will be going to Highway 40 anyway.

Present truck traffic and future traffic was discussed and determined as follows:

KDOT data shows at present there are 2,540 vehicles, 285 of which are trucks each day on US Highway 40 and currently the plant operation has about 230 trucks of the 285 listed in the data. In future when both operations are functioning, the number could reach as high as 460 trucks a day on the road which is within KDOT’s functioning capacity, which Mr. Holland explained. Mr. Bettis has stated that 75% of their trucks entering and exiting the site are from US Highway 40 and 25% would be using SE 45^th Street, which is not under KDOT’s jurisdiction and he would have to defer to Mr. Tom Vlach to address that question, however at the 25% ratio, that would be approximately 60 trucks a day on SE 45^th Street.

Mr. Bettis verified the quarry currently operates from 6:00 am to 5:00 pm Monday through Friday. It was also determined the projected 460 truck trips are a total of 230 trucks into the site and 230 trucks leaving the site.

Discussion continued about the projected increase in truck trips and what would be considered peak truck traffic during the plants’ busiest days.

Mr. Bettis addressed the concern of trucks cutting across using the E50 Road stating there are no trucks permitted to go to E50 highway, and he encouraged anyone who sees that activity to report that to the Sheriff’s Office. It is his understanding that government entities such as Douglas County, Kanwaka Township and Lecompton periodically use that road, but there should be no trucks using that road as an entrance in and out of the facility and reiterated their preference is not to use SE 45^th Street except for local deliveries and to primarily use US Highway 40.

Mr. Bortz asked Mr. Bettis if their facility at I-70 and MacVicar Street had ever been cited by the KDHE, or if they have had any issues, and Mr. Bettis said not since his involvement with the plant.

Mr. Nasseri spoke to the odor issue commenting the current plant design helps to eliminate the blue smoke and odor associated with asphalt plants. He reported there are instruments that measure odor emissions and provide data as to whether the emissions are exceeding the standards, which does not normally happen with today’s asphalt plants and KDHE has not reported odor emissions as a problem with asphalt plants. Mr. Bettis said there is 99% no odor when the facility is in use, and when not in use there is no odor at all.

Regarding concerns about trucks running at night, Mr. Bettis stated he is requesting approval to run at night on a periodic basis in the event a job required specific working hours and referenced the Wanamaker project, which required them to work at night to minimize the impact on safety and traffic during the day.

Mr. Bettis also stated he would be willing to have safety meetings with their truckers to educate them on the speed limits and other requirements.

Mr. Vlach confirmed there have been times when the Public Works Department has asked Bettis to run their operations at night when traffic is less or to meet a deadline, but those times are far and few between.

Mr. Hutton gave a rebuttal to opposing comments from neighbors:

· There is no land lease for the plant at I70 & MacVicar Road, therefore, his client is not losing the land lease and his client owns the property and there is no plan to move the operation from I-70 to the proposed site.

· There will no net increases or decreases in the number of asphalt plants in Shawnee County. They are proposing to move a plant that is existence and has had all the truck traffic discussed tonight to a more efficient location and will end up in a total net decrease in the number of trucks on the road, a decrease in the amount of road damage and a reduction in the diesel fuel used, which cuts down on pollution, all within Shawnee County.

· There is a greater distance from the proposed site to the nearest neighbor than that at the I-70 location, and there has not been any complaints regarding the plant from the neighbors in that area.

· One area resident who voiced concerns lives approximately 5,000-7,000 feet away from the site.

· They have been working with Douglas County for a long time regarding the portion of the rock quarry that is in their county and there are various issues, but regarding reclamation his client is working with Douglas County and maintains an open dialogue with them.

· Mr. Hutton provided clarification about a public meeting that took place in Douglas County.

· One resident complained of the truck noise, but when lives on a state highway trucks will be traveling that road.

· Speeding is an issue not only with trucks, but personal vehicles as well and his client has agreed to have safety meetings with their drivers on a regular basis. Other than that he did not have any answers and was trying to seek solutions.

Mr. Macfee stated part of the answer would be to have a Comprehensive Plan for Shawnee County that addresses roads, but there is not one at this time.

Mr. Bettis was questioned if he owned the trucks, and he stated they own 1 truck, but all other trucks are operated by independent contractors, and said he does require drivers maintain a satisfactory rating with the USDOT and there is a series of compliance items drivers must adhere to. The payment method of hourly pay versus truck loads was discussed and Mr. Bettis reported a log by drivers detailing their daily activities. He also said he had a safety meeting with the drivers last week.

Mr. Macfee closed public hearing and called for discussion amongst commission members.

Mr. Young asked Mr. Bettis if he would agree to an eighth condition to establish a regularly scheduled educational and training program for his drivers with the program defining what can be used as the entrance and exit into the facility and other safety issues such as speed limits, etc. Mr. Bettis agreed with Mr. Young and said it was a good idea and he would be willing to implement that program and relayed it is his understanding he would hold quarterly documented meetings that establishes the expectations of Bettis Asphalt and safety issues.

Mr. Bettis said he would agree to maintain the seven (7) mile area referenced in the Douglas County letter. Mr. Beagle told commission members they did not have any jurisdiction into Douglas County, and reviewed condition #7 on the staff report for commission members.

Discussing evening operations, Mr. Beagle verified the operating hours of the plant are tied to the special use permit that restricts the hours to 6:00 am to 10:00 pm, Monday through Saturday, unless flexibility is granted to allow them to go beyond 10:00 pm. Mr. Bettis stated since his time from 2003 to present, there have been 3 instances when he has worked beyond the 10:00 pm time frame.

After discussion finished it was agreed Mr. Bettis would provide a five (5) day notice of extended hours of operation to the Planning Department and Public Works Department, with Mr. Beagle and Mr. Delaughder offering language for extended hours. Mr. Beagle explained the condition would be a resolution addendum to the original special use permit. Ms. Johnson also requested the applicant list the number of days for the project as well as the extended hours.

Before voting on the proposal Mr. Macfee requested a break at 10:37 pm. The public hearing resumed at 10:45 pm.

After the public hearing was resumed, it was determined commission members would be voting on the proposed amended Special Use Permit subject to the seven (7) staff conditions Mr. Beagle listed in his staff report, and, would add two (2) other conditions with language to be formally drafted that would detail regularly scheduled quarterly educational/safety meetings and notification to the Planning Department and Public Works Department regarding extended night hours of operation which would also list the project’s ID number.

Mr. Young Motioned for approval subject to the seven (7) staff conditions noted in Mr. Beagle’s staff report and two (2) added conditions that define an educational training program for truck drivers and notification of extended hours for projects that require work outside the 10:00 pm timeframe. The motion was second by Mr. Bortz and was Approved by a vote of (6-0-0).

Public Comment on Non-Agenda Planning and Zoning Items

There were no comments offered.

Discussion of Planning Related Issues

There were no comments offered.

Adjournment:

Ms. Johnson motioned for adjournment, second by Mr. Bortz and the hearing was concluded at 11:00 pm.

SHAWNEE COUNTY PLANNING COMMISSION

Monday, March 09, 2009

Shawnee County Annex

6:00 PM