NOTICE: Carbon County Development Permit On-line Application and Process Guide  

SB 442 Override Letter - April 6

July 12, 2018

July 12, 2018
Commissioners Robert ‘Pits’ DeArmond, Scott Blain, and Bill Bullock, and Administrative Officer Angela Newell were present.
8:30 Pledge of Allegiance
Mary Cameron met with Commissioners for public comment. She requested the County address air conditioning issues in the Personnel Services building and asked that the repairs be included in preliminary budget discussions.
9:00 Contract Planner Forrest Mandeville met with Commissioners regarding the Preliminary Plat of the Windmill Farms Major Subdivision. Deputy Clerk and Recorder Christine Stovall, Jamie Walters, Victoria Rae Ganley, Gary Nelson, Niomi Hardy, Debby Elton, Jane Pool, Betty Joyce, Debbie Grewell, Beverly Haggerty, Diana Foos, Randy Foos, Jerry Spitzer, Marley Grewell, Randy Elton, Denise Maas, Mary Cameron, Michael Indelicato, Bryce Kirschenmann, Craig Dalton, Bruce Tonn, and Brett Heitshusen from the Dept. of Agriculture Ground Water Protection Program were present. Forrest reviewed his staff report including findings from the Planning Board Public Hearing, and the Planning Boards’ recommendation. The lots were created with Agricultural Covenant restrictions and need to go through subdivision review to have the covenants lifted. Forrest noted new wells and septic drainfields are proposed for each lot; as all parcels are less than 20 acres approval of wells and drainfields will be subject to Department of Environmental Quality (DEQ) approval. There are two points of access for the subdivision; the developer is proposing to dedicate subdivision roads to the County and create a Rural Special Improvement District (RSID) to pay for the cost of maintenance.
Forrest reviewed the Summary of Probable Impacts including: the elimination of the historical agricultural use for the land, the relocation of an irrigation lateral to provide irrigation water to each lot, the potential need to eliminate some proposed lots to stay within existing water right limitations, comments from Undersheriff Jeff Schmalz expressing concerns about the additional pressure this subdivision would place on an understaffed Sheriff’s Department, and the increase of motor vehicle traffic on Pryor Road and Elwell Street. Forrest also noted the applicant has proposed a temporary parkland dedication; proposed Home Owner Association covenants have a provision preventing any residents from protesting moving that parkland at a later date. The applicant has complied with Subdivision Regulations up to this point. A Group 1 Development Permit will be required prior to any residential construction.
Forrest reviewed public comments received before and at the Planning Board Public Hearing and the Planning Board’s evaluation of the comments.
1.Several comments expressed concern about existing shallow wells in Edgar that may go dry with the development of new wells in the proposed subdivision.
The Planning Board agreed this was a concern and discussed potential ways to minimize the impact, such as utilizing cisterns in the subdivision or the formation of a new water and sewer district. The Board felt that requiring DEQ review and approval prior to final plat would adequately mitigate concerns about the subdivision’s impact on existing wells, but did modify Condition #1 to add reference to the public’s concerns.
2. Several comments also noted concern about the potential impact from effluent from new drainfields infiltrating the underlying aquifer, potentially contaminating existing wells in Edgar. The Planning Board agreed this is a concern, but noted that current DEQ requirements for drainfield design should prevent adverse impacts if DEQ review and approval is required. Condition #1 was modified to add reference to the public’s concerns.
3. Concerns were expressed by the public that the DNRC water right process would not measure the true impact of the subdivision and not take all data into account when evaluating the subdivision. The Planning Board felt this was State policy and best left to the State regulating agencies to evaluate. No findings or conditions were amended to reflect these comments.
4. Public comments indicated past issues with contaminants, including high nitrates in the school well and bacteria in private wells, which created the impetus for creating the existing Edgar sewer system. However, connection to the existing sewer system was not feasible due to size issues. The Planning Board expressed interest in hearing the background and history of Edgar, but did not make any changes to findings or conditions based on these comments.
5. Concerns were expressed about the staffing issues noted by the Sheriff’s Department and discussed in the findings. The Planning Board felt this was a County-wide issue, not unique to this subdivision, and did not make any adjustments to the findings or conditions based on these comments.
6. The proposed RSID for maintenance of the roads was mentioned, with comments in favor of the RSID as opposed to relying on an HOA for maintenance, and comments opposed to the RSID as potentially leading to a burden on County resources. The Planning Board noted that RSIDs have not been used for subdivision roads in Carbon County in the past, but felt it may be a better way to ensure continued maintenance of roads. The establishment of an RSID to provide for dry hydrant maintenance was more desirable, with Planning Board discussion focusing on the public safety benefits of having a well-maintained hydrant, while an under-maintained road can still be utilized. The Board felt this issue would best be decided by the Commission, and added language to Condition #5 allowing an HOA to maintain the road if a satisfactory RSID could not be developed.
7. Public Comment indicated concerns for ditch maintenance in the area. Planning Board discussion noted that the ditch would be maintained by the Homeowners’ Association. However, the Board amended Condition #11 to increase the required easement from 10 to 15 feet from the centerline of the ditch.

8. Concerns were raised about potential safety issues resulting from increased traffic as a result of the subdivision. The Board discussed possibilities of requiring a widening of East Pryor/Elwell Road, turn lanes into the subdivision, and improvements to the intersection of East Pryor Road and Highway 310, but ultimately decided that the
existing road system was adequate and did not make any changes to the findings or conditions.

The Planning Board recommend approval of the preliminary plat subject to the following 14 conditions:
1. Filing of the final plat shall be subject to the review and approval by the Montana Department of Environmental Quality after considering the public comments and documents indicating significant concerns with potential impacts on area wells and the possibility of drainfields adversely affecting the underlying aquifer.
2. A notation shall be provided on the final plat that legal and physical access is provided per 76-3-608(3)(d), MCA.
3. Per Section V-A-15., the final plat shall show the location of all existing and required utility easements, and must include the following statement: “The undersigned hereby grants unto each and every person, firm or corporation, whether public or private, providing or offering to provide telephone, telegraph, electric, power, gas, cable television, water or sewer service to the public, the right to the joint use of an easement for the construction, maintenance, repair and removal of the lines and other facilities, in, over, under and across each area designated on this plat as “Utility Easement” to have and hold forever.”
4. The final plat shall be prepared and reviewed in accordance with Section III-C of the Carbon County Subdivision Regulations and the Uniform Standards for Final Subdivision Plats (24.183.1107, ARM).
5. Developer must establish an RSID acceptable to the County to provide for maintenance of roads and the dry hydrant within the subdivision. Alternatively a Homeowners’ Association may be established to maintain the road.
6. New roads (Steele Way, Thornton Way, Patterson Drive) must be constructed per Section V-A-10 prior to filing of final plat. As-built documents certified by a professional engineer licensed in the State of Montana must be submitted with the final plat.
7. A temporary cul-de-sac or hammerhead turnaround shall be installed at the east terminus of Patterson Drive. This may be of gravel surface.
8. Developer shall install one or more pedestrian crossing signs near the access of the subdivision.
9. Developer shall install a 30,000 gallon dry hydrant prior to final plat. Installation of the hydrant shall be supervised a professional engineer and as-built documents filed with the final plat.

10. Developer must enter into a weed management plan with the Carbon County Weed District.
11. Per Section V-A-18, an easement shall be provided and shown on the final plat for the irrigation ditch on the west and south of the subdivision. The easement should be 15-feet each side of the centerline of the ditch.
12. The final plat shall reflect the reduction in lots by seven, eliminating Lot 5, 6, and 7 of Block 1, and Lots 1, 2, 3, and 4 of Block 4. This will also remove Tract 3, COS 2425 AG from the subdivision. An easement for use by members of the Homeowners’ Association of a parkland area at the south terminus of Steele Way must be filed with the final plat as well.
13. The Declaration of Restrictions and Homeowners’ Association Document must be filed with the final plat.
14. The Developer shall sign a waiver of the right to protest the creation of one or more special improvement districts for the purpose of street lights, street light energy, street light maintenance, and the construction and/or maintenance of streets, alleys, traffic control devices, curb, gutter, sidewalks, drive approaches, survey monuments, water mains, sanitary sewer mains, and storm drain line, parks and park maintenance, and any other incidental improvements which Carbon County may require.

Forrest reviewed how Commissioners are required to evaluate the evidence provided after the Planning Board Public Hearing. Commissioners are required to determine if the information received is something the public has had a reasonable opportunity to examine or if it is it new information that was not considered as evidence at the Public Hearing. If Commissioners determine the information is new, relevant, and credible, those topics should be sent back to the Planning Board for a subsequent Public Hearing. If Commissioners determine it is not new, relevant, or credible information, Commissioners can make their decision without considering the information. The Subdivision Regulations definitions state the information must be new, verifiable, relevant to topic, and within the jurisdiction of County Commissioners. Commissioner Bullock noted he believes the information he has reviewed is new and should be vetted in a Public Hearing.

Commissioner Blain asked Forrest go through the additional information received for the Commissioners and participants. Forrest has received additional information from: Nev Harding with information from DEQ regarding sewage holding tanks not being an alternative to septic tanks and information regarding irrigation water availability; Craig Dalton from Performance Engineering regarding water availability in the aquifer based on a water availability test performed yesterday; and Denise Maas reiterating concerns expressed at the Public Hearing regarding ground water availability and quality.

9:45 Commissioner Bullock opened the meeting to public comment. Comments were received as follows:
Jamie Walters expressed concerns about ground water availability with the seasonal changes in the aquifer’s levels especially with less irrigation water replenishing it. She also expressed concerns about going back to cisterns and negative affects on property values. `
Nev Harding presented information regarding the transfer of water rights noting Cooney water rights cannot be transferred in less than 50 shares in a block and he believes it is unlikely the subdivision will be granted the water rights. Nev presented a petition to the Commissioners requesting a decision on the subdivision be delayed until it can prove it has secured the propose water rights. Nev also discussed the history of other proposed subdivisions being denied because of water quality issues
Craig Dalton, the Developer’s agent from Performance Engineering, noted the Planning Board thought requiring DEQ review and approval would be sufficient to mitigate any impacts to groundwater. He expressed concern that sanitary information is not being stated accurately, and believes it is the role of DEQ and DNRC to review the technical sanitary information as part of their approval process. Craig also noted the creation of an RSID would only set up an account to fund road maintenance and maintenance of the dry hydrant. The District is not intended to burden the County with additional maintenance responsibilities; the County can charge an administrative fee and contract the services with a private entity.
Greg Nelson noted their well was re-drilled last summer but the water was too contaminated with rust and iron to drink. He expressed concerns about traffic impacts from the subdivision and believes it will cause congestion on the approaches to Highway 310.
Debby Elton expressed concerns about water availability. She has lived in Edgar since 1960. She noted there are 3 wells on her property, one at 30 feet, and they still have to conserve water in the winter. Debby noted her wells have been contaminated twice. Because of the topography, she believes the new subdivision wells would get water first and would leave current residents without water.
Debbie Grewell commented that her well went dry in 1996 and September of 2017. She noted they have drilled various wells over the years and have had significant sand infiltration. Debbie is not opposed to the subdivision but believes it should have its own water and sewer.

Commissioner Blain noted the County has no interest in plowing subdivision roads. He believes that if roads are dedicated to the County, residents will expect plowing and set a precedent for maintenance in other subdivisions. Forrest noted RSID funds could be used to contract plowing and other maintenance services rather than placing additional burden on the Road Department. Commissioner Blain noted even with contracted services, maintenance requests and complaints would likely still be directed to the County. Commissioner Bullock agreed opening the door to manage RSIDs for road maintenance and/or plowing would be a managerial burden on the County. Commissioner Blain asked why Patterson Road was not to be built to County Road standards when Steel and Thoron would be. Forrest noted Patterson is an internal subdivision road; the others intersect with County Roads.
Mike Indelicato – purchased 290 acre property adjacent to proposed subdivision, sold as “recreation ranch”. Report does not address view corridor, water access, or impact to wildlife and wildlife corridor. Noted report D1 nearest surface water is Clarks Fork ½ mile to SE; he has a 30 acre pond between proposed subdivision and River on his property. Believes would significantly change character of area and have adverse impact to wildlife. Req subsequent hearing before PB
Bryce Kirschenmann noted the RSID he lives in in Yellowstone County does not provide snow removal.
Randy Elton asked what end of the subdivision the test wells, showing 60 gal/minute and 20 gal/minute, were located on. Nev asked that the information on the test wells be made available to the public.
Marly Grewell noted current residents rely on 4-wheel drive to get the Highway 310 in the winter and rely on the County to open the roads. She expressed concerns that new residents will have a different expectation especially if the subdivision roads are County roads.
Forrest would like to review what items Commissioners considered new: Well info from developer; Harding findings; water rights information; and comments regarding the pond on an adjacent property. Forrest asked commissioners about the request to review effects on wildlife habitat. Commissioner Bullock noted impacts to wildlife habitat were already evaluated by the U.S. Fish and Wildlife Service, as the agency did not identify any critical habitat on the property, Commissioners do not believe that topic can be reconsidered. Commissioners thanked participants for the information they provided.
10:20 Public comment on the Windmill Farms Subdivision preliminary plat was closed. Commissioner DeArmond moved, considering new credible information has been

presented since the Planning Board Public Hearing that may impact wells, septic systems, water rights, and a pond on an adjacent property, that pursuant to the Carbon County Subdivision Regulations (Section III-B-10) to refer this new information to the Carbon County Planning Board for a subsequent Public Hearing at which only the new information may be considered; Commissioner Blain seconded; motion carried.
10:40 Commissioner Blain moved to accept the Motor Grader Bid from RDO Equipment; Commissioner DeArmond seconded; motion carried.
10:45 Deputy County Attorney Shannon Foley met with Commissioners. She expects Industrial Communications and Electronics response to the Simulcast Radio System complaint to be filed next week. Commissioner Bullock noted the Airport Board Agreement was discussed at the City of Red Lodge’s Land Use and Planning Committee meeting on Tuesday. The City changed the Agreements expiration from a 5-year agreement to an ongoing agreement with a 90-day notice to terminate. Shannon and Commissioners discussed the City Court Agreement; there has not been a response from the City on the County’s final draft. Shannon noted her office expects significant expert costs in the upcoming year with the rape trial scheduled for the end of September and the murder trial expected to take place in the next year.
Commissioner Bullock noted Northwestern Energy sub-station issues that caused power fluctuations in the Court House on Monday. The generator switch acted as it was supposed to, but the battery backup was not wired to the addition as the plan documents did not call for it. Commissioner Bullock will call John Ladvala to evaluate the issue and provide a quote for the work to property wire the backup to the addition.
11:30 Ed Webb met with Commissioners regarding fencing on ROW in Belfry. Commissioner DeArmond will meet with Mr. Webb and Forrest Mandeville next week to look at the issue.
Commissioner Blain moved to approve Commissioners proceedings from June 25th and 28th; Commissioner DeArmond seconded; motion carried.
Commissioner Blain moved to approve final June 2018 claims as submitted; Commissioner Bullock seconded; motion carried.
12:00 Adjourned

Respectfully submitted: Angela Newell, Administrative Officer