COMMISSIONERS MINUTES                                 JANUARY 7, 2008

The Commissioners met in regular session on the above date in the Commissioner’s Room, basement of the Elmore County Courthouse, 150 South 4th East, Mountain Home, Idaho.

Present at the meeting were Chairman Larry Rose, Commissioners Connie Cruser and Arlie Shaw. Also present was Clerk Marsa Grimmett and Civil Attorney Richard Roats.

Jim McNall, Idaho Counties Risk Management Program, appeared before the Board to discuss Payroll matters. The County is considering changing the employees pay period from monthly to bi-weekly. Mr. McNall stated designating the work period would be helpful. Discussion followed on pro’s and con’s of changing to a bi-weekly pay period. Representatives from the Sheriff’s office joined the meeting. Discussion followed on the additional time cards that would be required for all the offices. Mr. McNall stated weekly time sheets would be more accurate. The breakdown of the sheriff’s work period was discussed. The Sick Leave Bank was briefly discussed. County employees running for elected positions, and the conflict it causes within that office was discussed. Vacation and sick leave accrual was discussed. Mr. McNall also stated they have a new personnel policy available on their website and one of the issues is the resignation policy. The Commissioners thanked Mr. McNall for attending the meeting.

Motion by Rose, second by Shaw, to go into Executive Session pursuant to I.C. 67-2345(d). Roll call vote was taken.
ROSE - AYE
CRUSER - AYE
SHAW - AYE Motion carried and so ordered.

A hearing was held on K-09-07-04. Present at the hearing were the three Commissioners, Civil Attorney Richard Roats, Social Services Director Marianne Bate and Clerk Marsa Grimmett. Also present was the applicant. Ms. Bate reviewed the case for the Board. The Commissioners asked the applicant questions. The hearing was continued to February 4, 2008 at 2:00 p.m.

Still in Executive Session a hearing of reconsideration was held on K-09-07-02. Present at the hearing were the three Commissioners, Civil Attorney Roats, Social Services Director Marianne Bate and Clerk Marsa Grimmett. Also present was Rhonda Walters, a financial specialist from St. Alphonsus Regional Medical Center. Ms. Bate reviewed the case for the Board. The applicant was not present, but had been subpoenaed. The return of service has not been received from the Sheriff’s office at this time. Ms. Bate will check with the Sheriff’s office. Ms. Walters stated the hospital did an interview with the applicant, he is living on Baker Drive and has returned to work at a construction sight on Mountain Home Air Force Base. Ms. Walters phoned the applicant to remind him of the hearing today but there was no answer. Motion by Rose, second by Cruser to reschedule the hearing on K-09-07-02 to February 4, 2008 at 2:00 p.m.
ROSE - AYE
CRUSER - AYE
SHAW - AYE Motion carried and so ordered.

Regular session resumed.

The Commissioners discussed the purchase vans for transporting jail inmates.

Motion by Shaw, second by Cruser to recess for lunch.
ROSE - AYE
CRUSER - AYE
SHAW - AYE Motion carried and so ordered.

Regular session resumed.

Motion by Rose, second by Shaw, to approve the minutes of December 31, 2007.
ROSE - AYE
CRUSER - AYE
SHAW - AYE Motion carried and so ordered.

The Fair Board appointment was discussed. The Commissioners want a recommendation from the Fair Board before any appointments are made.

Chairman Rose read the public hearing notice into the record for the Sunrider Ranch Subdivision Appeal: NOTICE IS HEREBY GIVEN that on Monday, January 7, 2008 at the hour of 2:00 p.m. in the Commissioner’s Room, basement of the Elmore County Courthouse, 150 South 4th East, Mountain Home, Idaho, a continuation of a public hearing will be held to receive testimony on an appeal of a Planning and Zoning Commission decision to deny a request to amend a Conditional Use Permit to allow individual wells on each lot in Sunrider Ranch Subdivision. The Subdivision site is all of the SE1/4 SW1/4 and a portion of the NE1/4, SW1/4, of Section 18, Township 1 South, Range 5 East, B.M. A common direction to this property is Simco Road exit from I-84 to Desert Wind Road, turn right, proceed about two miles to S. Tyler Road, which is included in the subdivision. The appellant is Ann Atkin, Manager, Beacon Lights, LLC.

Ann Atkin and Brett Harward, appellants, Beacon Lights, LLC, who were signed up to speak stated they would speak at the end of the public hearing.

Ken Jones, 11153 W. Desert Duck, Tipanuk, stated he lives in Basin 61 which is called the Snake River Aquifer. Mr. Jones stated water rights cannot be transferred from one aquifer to another. Mr. Jones asked if a water impact study had been done in that area on the aquifers. Commissioner Shaw questioned Mr. Jones about the two separate aquifers and Mr. Jones stated the Boise Basin Aquifer and the Snake River Aquifer are the two separate aquifers in that area.

Guy Burnham, 24300 Ditto Creek Road, appeared before the Board and gave the Commissioners a copy of a newspaper article from Arizona regarding water issues and briefly explained the article. Mr. Burnham stated the best technical water assessment that has been made to date was done in 1970’s and 1980’s by the Department of Water Resources in the Cinder Critical Water Area and they are they are the legal constituted authority in the State. The best technical assessment we have is that there is insufficient water to meet the needs of the existing users in this area. That is the official position until further testing. Mr. Burnham went on to explain the allocation of the aquifer. Mr. Burnham stated recharge is not sufficient to meet any new water uses. Chairman Rose stated that Water Resources has stated there is not enough water in the area, it would be a moral obligation of the Commissioners to protect the people in the area, but there is nothing on record from the legislature that states a person cannot drill a well and pull 13 thousand gallons from the aquifer. Mr. Burnham questioned if development was right for an area that has been used as range land for cattle grazing that is zoned for that use. Commissioner Shaw asked if in the Mountain Home Groundwater Management Area, is the statement the same as the Cinder Critical Water Area that there is not enough water for existing water users. Mr. Burnham stated the Mountain Home Groundwater Management area does encompass some recharge areas and there may be some areas that could support some development. Commissioner Shaw then asked if there has been any litigation of a well being drilled on someone’s property causing another property owner’s well water level to decrease. Mr. Burnham stated an aggrieved party can petition the Department of Water Resources if they feel their well water level has decreased.

John Root, 10475 W. Desert Duck Ave., Tipanuk, appeared before the Board and stated he spoke with his Representative, Pete Nielson, and Mr. Nielson will be submitting a plan to the legislature he has for water use, including changing the domestic well water use to 6,000 gallons per day. Mr. Root asked the Commissioners to invite Mr. Nielson to come before the Board before that plan is submitted. Mr. Root reviewed the rules of domestic well use and stated the current rules are old. Mr. Root state he has done research on the new development proposed in this area, and from the County line to Blacks Creek there are subdivisions planned for approximately 8700 homes, the largest piece of ground in the proposed subdivisions is .83 acres. Chairman Rose asked who would regulate the 6,000 gallons per day. Mr. Root stated he hoped citizens would follow the law.

Bob Ruth who had signed up to speak declined.

Brett Harward, 4475 Oxford Way, Bountiful, Utah, representing Beacon Lights LLC, came forward and stated their project should not have to wait for a decision until the legislators pass laws. Mr. Harward stated they have done many studies and tests on the water in the area. Chairman Rose asked Mr. Harward if they would consider giving up the water rights they have purchased to have individual wells. Mr. Harward stated he does not feel that is fair, they need those water rights to do a community water system later in the subdivision. They are asking to proceed with individual wells at this time. Mr. Harward stated if you could escrow the water rights for a community water system they would consider doing that. Mr. Harward stated they need to amend their Conditional Use Permit to allow individual wells.

Ann Atkin, 2525 North 850 West, Provo, Utah, representing Beacon Lights LLC, stated grants are available to Government entities for community water systems. Ms. Atkin suggested the County could apply for such a grant for that area. Ms. Atkin stated the County is asking them to trade or give up three quarters of a million dollars worth of water rights.

Motion by Cruser, second by Shaw, to close the public hearing on an appeal of a Planning and Zoning Commission decision to deny a request to amend a Conditional Use Permit to allow individual wells on each lot in Sunrider Ranch Subdivision.
ROSE - AYE
CRUSER - AYE
SHAW - AYE Motion carried and so ordered.
Chairman Rose read the public hearing notice into the record for the Prairie Sun Subdivision Appeal: NOTICE IS HEREBY GIVEN that on Monday, January 7, 2008 at the hour of 2:00 p.m. in the Commissioner’s Room, basement of the Elmore County Courthouse, 150 South 4th East, Mountain Home, Idaho, a continuation of a public hearing will be held to receive testimony on an appeal of a Planning and Zoning Commission decision to deny a Conditional Use Permit and Preliminary Plat for a 73 lot platted subdivision to be known as Prairie Sun Subdivision in an Agriculture A Zone located in Elmore County. The decision was based on a failure to comply with item #22 located on the Conditional Use Permit Application. The three specific “failures” cited were, 2. C.14-1, 3. C.14-1 and 5. C14.1: Lots are too small/too many lots (lots: smallest 1.5 acres, largest 3.6 acres, average 2.4 acres), Lack of second egress/ingress, and Community well versus private individual wells. The appellant is Jay P. Clark/Developer. Site is located in a portion of the West Half of the Northwest Quarter and being in the North Half of the Southwest Quarter of Section 3 and being in the Northeast Quarter of the Southeast Quarter and the East Half of the Northwest Quarter of the Southeast Quarter of Section 4, Township 2 South, Range 5 East, B.M., Elmore County. A more common means of locating this site is from Simco Road and I-84, head northeast on Simco Road to Desert Wind Road. Turn right/southeast for approximately 5 ¼ miles to W. Tilli Road. Turn left/east onto W. Tilli Road for approximately 1 ½ miles. The property is located on the right/south side of the road.

Robert Bennett, 2250 North 5th East, Mountain Home, appeared before the board stating he owns adjacent property next to the proposed subdivision. Mr. Bennett stated he is opposed to the subdivision, particularly the density of the lots. Mr. Bennett spoke of a well in the Hot Springs area that had to be capped as other wells in the vicinity dried up. The Department of Water Resources required the well to be capped, although it was an irrigation well opposed to a domestic well. Mr. Bennett stated he didn’t feel there was the water capacity for a community well in the area of the proposed subdivision.

Doctor Tony Schiro, 17198 N. Oceanview Lane, Mountain Home, appeared before the Board. Mr. Schiro stated he would be most affected by the subdivision as it would surround his current home. Mr. Schiro stated he went to the Southern Idaho Health Department website and looked up the rules and regulations for subdivisions, particularly septic systems and the testing needed. Mr. Schiro stated he has not seen any of these test results on this proposed subdivision. Mr. Schiro also cited a court case from a 2005 Idaho State Supreme Court Ruling, Fisher vs. the City of Ketchum, where the Idaho Supreme Court stating that a Board of County Commissioners cannot even rule on an approval of a subdivision until the County Commissioners have reviewed all the testing that is required.

Bonnie Sharp, Growth and Development Director, who was in the audience, was asked by Chairman Rose if the Health Department required Level One Nitrate testing? Ms. Sharp replied they did not.

Guy Burnham, 24300 Ditto Creek Road, Mountain Home, appeared and stated he would like his previous testimony from the Sunrider Ranch Subdivision appeal to apply to this public hearing also. Mr. Burnham stated once the water right has been established the date of the water right is critical.

Craig Deppen, 13542 W. Tilli Road, Mountain Home, appeared before the Board and stated no one is monitoring the water usage on domestic wells and the Developer should be responsible for that monitoring. Mr. Deppen stated he has yet to see or hear anything about training or outfitting any fire suppression units. Mr. Deppen also stated their community was working on a Quick Response Unit.
Mr. Deppen would like the wild land fire protection addressed also. With the addition of approximately 200 homes Mr. Deppen questioned protection from the Sheriff’s office. Traffic was also a concern.

Diane Cobb, 13703 W. Tilli Road, Mountain Home, appeared and explained to the Board that she had just moved from Boise after living there for 49 years. Ms. Cobb stated her home in Boise was rural and when the City expanded towards her property she moved here to Elmore County and feels the same thing is happening to her now. Ms. Cobb stated she would not have moved from Boise had she known there would be a subdivision in her backyard. Traffic is also another problem. Ms. Cobb stated she is not opposed to small development and also stated she has cattle and horses and her rights will be taken away when the residents in the subdivisions start complaining about her animals. No fire departments have been considered. Ms. Cobb stated she had a horse hit and killed by a vehicle a month ago out at her place.

Loren Jalbert, Engineer of Record for Sunrise Engineering on the Prairie Sun Subdivison, 1650 South Topaz Way, and Karissa Hardy, Engineer in training with Sunrise Engineering, appeared before the Board representing Jay Clark. Mr. Jalbert stated he felt there were three issues to address: density, egress, wells and water, and fire. Mr. Jalbert stated they did a NP study (Nutrient Pathogen) and also sat down with Marty Jones from Central District Health and Mr. Jones agreed with how the Subdivision was layed out regarding the density. Regarding the second egress, a traffic impact study was done. The Mountain Home Highway District wanted larger roads, the plat was redone and the Mountain Home Highway district approved it. Regarding fire conditions, they have met with Bob Ruth and have agreed to supply water tanks for fire fighting. Mr. Jalbert stated next was the water issue. Mr. Jalbert reviewed a pamphlet that he passed out to the Commissioners. Mr. Jalbert reviewed the data within the pamplet that he had received from the Department of Water Resources in the area of the proposed subdivision of the wells. Mr. Jalbert stated in their CC&R’s (Covenants, Conditions & Restrictions) they are requiring 7500 gallons of water use only per day. Discussion followed on water issues and how other states are handling them and the tests that were done for the septic systems.

Motion by Rose, second by Cruser, to close the public hearing on an appeal of a Planning and Zoning Commission decision to deny a Conditional Use Permit and Preliminary Plat for a 73 lot platted subdivision to be known as Prairie Sun Subdivision.
ROSE - AYE
CRUSER - AYE
SHAW - AYE Motion carried and so ordered.

Stephanie Bergh came before the Board to ask that the Commissioners change the Commissioner district boundaries. Discussion followed on how the districts were determined the last time they were changed to equal the representation of the whole County.

Bonnie Sharp, Growth and Development Director, appeared before the Board and asked if they had had time to review the letter from Planning and Zoning regarding citizens who have applied for conditional use permits. Commissioner Shaw has been on vacation, so the Commissioners told Ms. Sharp they needed more time to respond to the letter.

Guy Burnham, 24300 Ditto Creek Road, Mountain Home, came before the Board during the Public portion of the meeting to let them know he would try and help them with solutions for water problems in the County.

The Board addressed the Resolution for an Emergency Moratorium on Letters of Information for Lot Splits. Commissioner Cruser read the Resolution into the record:

RESOLUTION NO. ____-08

DECLARING AN EMERGENCY MORATORIUM ON (A) ACCEPTING AND GRANTING PERMITS FOR ORIGINAL LOTS OF RECORD AND/OR ADMINISTRATIVE LOT SPLITS, (B) RECOGNIZING EXEMPTIONS FOR CERTAIN LARGE LOTS OR PARCELS UNDER THE ELMORE COUNTY ZONING ORDINANCE, AND (C) ALLOWING LETTER OF INFORMATION (LOI) SUBDIVISION DEVELOPMENT

WHEREAS:

Elmore County is authorized by Article 12, Section 3 of the Idaho Constitution to enact local ordinances to protect health, safety and sanitation of the public within its jurisdiction; and

The Local Land Use Planning Act, Chapter 65, Title 67 of the Idaho Code requires each Idaho county to comprehensively plan and regulate land use in order to protect the health, safety and general welfare of its residents; and

Elmore County Ordinance No. 99-3 amended the Elmore County Zoning and Development Ordinance of 1994, which provided a new definition for original lots of record, allowed for the creation of new lots of record by administrative lot split so long as the new lots meet certain requirements regarding lot frontage to depth ratio and deeded or direct access to highway district roads, and fashioned certain exemptions; and

Elmore County Zoning and Development Ordinance, Chapter 2, Article III-2, sets forth a scheme for approving and regulating division of property and subdivision development, including a specific exemption from the general rules regarding subdivision development for large lots or parcels contained in Section A.3-2; and

Elmore County Zoning and Development Ordinance, Chapter 2, Article III-2, Section E.3-2 defines letter of information (LOI) development and establishes a scheme for approving and regulating such development; and

The Elmore County Board of Commissioners has become aware that developers and large property owners are creating 40-acre parcels, which are deemed to be new lots of record under the Elmore County Zoning and Development Ordinance, as amended. These new lots are then being sold for development or further divided through the exception for large lots or parcels that allows for LOI development without subdivision approval or plat requirements; and

The Board of County Commissioners has determined that an imminent peril to the public health, safety and welfare of the people of Elmore County exists because of inadequacies present in the current ordinances, to-wit: upon review of the existing ordinances regarding original lots of record, new lots of record, exemptions for large lots or parcels, and/or LOI development, the Board has determined the Elmore County Zoning and Development Ordinance is vague and contains insufficient procedural and substantive requirements and safeguards, including but not limited to the following:
1. The ordinances setting out the review process for applications for the creation of new lots of record do not clearly define who must review the requirements for lot frontage to depth ratio and deeded or direct access to highway district roads. Neither does the ordinance provide standards for the review of the requirements or to determine whether the stated exemptions exist. Finally, the ordinance provides little guidance regarding whether to grant the application to create a new lot of record.

2. The ordinances establishing the process for the creation of new lots of record, exempting certain large lots or parcels and permitting LOI development fail to set forth standards for governing such development. The ordinances do not provide guidance on how to maintain public infrastructure, promote and/or preserve environmental development, preserve aesthetic qualities and protect neighboring property values and the economic welfare of the county.

3. The ordinances establishing the process for the creation of new lots of record, exempting certain large lots or parcels and permitting LOI development fail to provide assurances regarding the applicant’s duty to maintain proper access for emergency vehicles, including ambulance, fire protection/suppression equipment and other first responders; and

The Elmore County Board of Commissioners further finds the perilous situation posed by the inadequacies identified above requires adoption of a new ordinance governing the creation of new lots of record, exemption of certain large lots or parcels, and LOI development; and

The Elmore County Board of Commissioners finds that such a repeal, plan, plan component, or plan amendment is being prepared for Elmore County.

NOW, THEREFORE, BE IT RESOLVED by the Board of Commissioners of Elmore County that, pursuant to I.C. § 67-6523, from the date this resolution is approved by the Board of Commissioners, until one hundred and eighty-two (182) days thereafter or the adoption of a repeal, plan, plan component or plan amendment, whichever occurs sooner, that Elmore County will not accept for processing any applications for new lots of record, exemption of large lots or parcels, or LOI development, as defined in the Elmore County Zoning and Development Ordinance.

During the period of this Emergency Moratorium, the Board directs the Elmore County Planning and Zoning Commission to draft an amended section of the Zoning and Development Ordinance to properly regulate such developments and submit said proposed amendment to the Board for consideration and adoption.

Employees of Elmore County are hereby authorized to take all steps necessary to place this interim moratorium in effect and carry out its terms as appropriate.

Approved as a Resolution of the Elmore County Board of Commissioners on the _____ day of January 2008.

ELMORE COUNTY COMMISSIONERS
LARRY E. ROSE, Chairman
CONNIE CRUSER, Commissioner
ARLIE SHAW, Commissioner
ATTEST: MARSA GRIMMETT, Clerk of the Court and the
Elmore County Board of Commissioners

Motion by Cruser, second by Rose, to approve the Resolution for an Emergency Moratorium on Letters of Information for Lot Splits.
ROSE - AYE
CRUSER - AYE
SHAW - AYE Motion carried and so ordered.

Motion by Cruser, second by Rose, to appoint Commissioner Shaw to be Chairman for 2008.
ROSE - AYE
CRUSER - AYE
SHAW - AYE Motion carried and so ordered.

Motion by Rose, second by Cruser, to go into executive session pursuant to I.C. 67-2345(f) litigation issues. Roll call vote taken.
SHAW - AYE
CRUSER - AYE
ROSE - AYE Motion carried and so ordered.

Regular session resumed, no action was taken as result of the Executive Session.

Motion by Cruser, second by Rose, to uphold the Planning and Zoning Commissions decision to deny the application to amend the Conditional Use Permit wherein the applicant asked to remove the condition of a community water system on Sunrider Ranch Subdivision. The community water system was part of the original application submitted by the applicant.
SHAW - AYE
CRUSER - AYE
ROSE - AYE Motion carried and so ordered.

Motion by Shaw, second by Cruser, to uphold the Planning and Zoning Commissions decision to deny the Conditional Use Permit on the proposed Prairie Sun Subdivision for the following reasons: the lots are too small, there are too many lots, the lack of second ingress/egress,

community well versus private individual wells and the proposed subdivision is located in the Critical Groundwater Area as designated by the Department of Water Resources.
SHAW - AYE
CRUSER - AYE
ROSE - AYE Motion carried and so ordered.

Motion by Cruser, second by Shaw, to adjourn.
SHAW - AYE
CRUSER - AYE
ROSE - AYE Motion carried and so ordered.

/S/ ARLIE SHAW, Chairman
ATTEST: /S/ MARSA GRIMMETT, Clerk