June 29, 2021

COMMISSIONERS’ PROCEEDINGS
June 29, 2021
Commissioners Scott Blain, Bill Bullock and Scott Miller; and Commissioners’ Secretary Barbara Krizek were present.
8:30 Pledge of Allegiance.
Commissioners attended a public information meeting hosted by the Detention Facility Citizen Committee on June 23 held at the Silesia Fire Hall. In attendance were: Committee members Hal Lewis and Jane Swanson Webb; Commissioner Scott Blain; Spectrum Architects Gary Levine and Kathleen Armstrong; Hulteng CCM Shane Swandal; Sheriff Josh McQuillan; Commissioners’ Secretary Barbara Krizek; Mark Keyes, Kevin Wilkerson, Melvin Hoferer, Jess Hoferer, Cristine Hoferer, Tyrel Hoferer, Bob Adkins, Marilyn Adkins, Nick Kisch, Chris Pugrud, and Brent Wood. A panel presentation was given covering topics such as: the decades-long history regarding detention issues, transportation challenges to other counties with facilities, the nature of the crimes being committed and the warrants outstanding, the public safety challenges facing judges with few options for imposing detention on offenders, and construction and operating budgets. A public question and answer session concluded the meeting.
The regularly-scheduled Commissioners’ meeting on June 24 was cancelled.
Department of Natural Resource Conservation (DNRC) Robertson Draw Fire Update by Jeff Bollman. In attendance: Disaster and Emergency Services (DES) Coordinator Cyrina Allen, Fire Warden Tom Kohley, Red Lodge Fire Chief Tom Kuntz, Bureau of Land Management Fire Management Officer Jeff Brown, Judith Gregory, Polly Richter, Threse Fuchs, Betty Scott, Kit Moldenhauer, Susan Wadsworth, Karen Walmsley, Diane Schwartz, Theresa Whistler, and Carbon County News Eleanor Guerrero. Bollman provided information on the Fire Management Assistance Grant (FMAG) application to FEMA to assist with cost reimbursements such as those for County personnel deployed in fire assistance during the emergency declaration period. Kuntz detailed that there is still an area of concern on the Northwest flank of Mount Maurice with no good way to contain it due to the steep terrain; also, a green patch of vegetation within Grove Creek could flare up given the right conditions. A Type 2 Team will come in to assess and manage going forward. Kuntz opined that conditions are hotter and drier for this time of year than he’s ever seen before; currently this fire has all the resources it needs. Kohley stated that FMAG opens up funding for mitigation for next year; puts us in priority status/consideration.
Public Comment Period: Public members asked whether fireworks will be banned. Commissioner Blain stated that state legislature has not given counties that authority, while municipalities have the legal authority to ban fireworks; Kuntz echoed that it is illegal to sell or set-off fireworks within Red Lodge city limits. Kohley furthered that the land management agencies have the authority on their own lands (ex: Forest Service, BLM). Forest Service has now prohibited campfires in campgrounds. Gregory urged Commissioners to confer with Yellowstone County, who has interpreted state statute to allow counties to enact a resolution to ban fireworks.
9:00 Amended Plat of Lot 8, RnR Elk Resort Subdivision. In attendance: Contract Planner Forrest Mandeville, Cindi Hoiness, Michael Hoiness, Essex Surveying Lynn Essex, Moldenhauer, Clerk and Recorder Christine Stovall, and Deputy Clerk and Recorder Crystal Roascio. Mandeville stated that the subdivision was conditionally approved on February 17, 2021 and that conditions have been met. Commissioner Blain moved to approve the Amended Plat of Lot 8, RnR Elk Resort Subdivision; Commissioner Miller seconded; no further discussion; no public comment; motion carried.
9:30 Preliminary Plat Windmill Farms Subdivision presented by Mandeville. In attendance: Deputy Clerk and Recorder Macque Bohleen, Stovall, Guererro, Mike Cross, Sue Cross, Mike VouXXX (last name not legible), Denise Maas, Nevins Harding, John Edwards, Debbie Grewell, Marley Grewell, Randy Foos, Diana Foos, Tom Spitzer, Jerry Spitzer, Dan Catlin, Bruce Tonn, Craig Dalton, Beverly Haggerty, Shirley Johnson, Victoria Ganley, Ken Metzger, Chris Metzger. Mandeville detailed that Performance Engineering, on behalf of Windmill 312, LLC, Bruce Tonn, Partner, and Dan Catlin, has submitted a preliminary plat application for a 3-lot subdivision consisting of 66.25 acres. The tracts were created utilizing an agricultural covenant (Certificate of Survey 2425 AG), which exempted the creation of the property from subdivision review. Placing an agricultural covenant on the property restricts the property from being utilized in a non-agricultural way. However, review and approval of the proposed subdivision will lift the agricultural covenants. The subject property is located on the southeast corner of the intersection of Highway 310 and E. Pryor Road/Elwell Street. The property is legally described as Tracts 2, 3, and 4 of COS 2425 AG, located in Section 26, Township 4 South, Range 23 East, P.M.M., Carbon County, Montana.
Mandeville reported that the Planning Board considered this subdivision at their regular meeting of June 15, 2021 and made no changes to the conditions as a result of public comment which was received, but did add clarification into the finding that wells were existing on the site. The Planning Board discussion involved concerns about the potential lack of irrigation on the property after the subdivision, though several members also noted that the land is not currently being irrigated with a subdivision pending. Board members also mentioned concerns with the impacts of removing agricultural land from production, and noted that expanded community services (i.e. water and sewer) could help address some of the public concerns. Board members also noted that the subdivision has been redesigned and was resubmitted to address some concerns, as well as the need to not focus on liking or disliking a specific project, but to ensure the necessary laws and regulations are being adhered to.
Mandeville continued that in a 7-1 vote (two members were absent), the Carbon County Planning Board recommended approval of the Windmill Farms Subdivision, pursuant to the following conditions (section references are to the Carbon County Subdivision Regulations unless otherwise noted):
1. Filing of the final plat shall be subject to the review and approval by the County Sanitarian, addressing, to the extent possible, concerns about availability of water for existing users.
2. A notation shall be provided on the final plat that the subdivision is not subject to DEQ review per 76-4-102(22), MCA, but that the lots have been reviewed by the Carbon County Sanitarian.
3. A notation shall be provided on the final plat that legal and physical access is provided per 76-3-608(3)(d), MCA.
4. An easement for the irrigation ditch shall be shown on the final plat and the following statement shall be included on the plat: “Nothing herein nor any covenant shall diminish the unobstructed use and maintenance of the existing water delivery ditches, pipelines, and facilities in the subdivision that are necessary to convey water through the subdivision to land adjacent or to beyond the subdivision in quantities and in a manner that are consistent with historic and legal rights.” (Section V-A-18)
5. 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.”
6. Developer must provide confirmation of MDT’s approval of the access to Highway 310 prior to final plat.
7. A notation shall be provided on the final plat warning lot owners about snow drifting concerns on the site.
8. The final plat shall be prepared and reviewed in accordance with Section IV-C and the Uniform Standards for Final Subdivision Plats (24.183.1107, ARM).
9. Developer must enter into a weed management plan with the Carbon County Weed District, if required by the District.
Mandeville noted the additional public comments which were received in writing from Jon Moyers who is legal counsel for the developers, Nevins Harding, and Randy Foos.
Commissioner Blain moved to approve the Windmill Farms Subdivision Preliminary Plat with the conditions recommended by the Planning Board; Commissioner Miller seconded. Commissioner Blain inquired whether these lots could be further subdivided; Mandeville detailed that a subsequent minor subdivision becomes major subdivision review process. Also, that there can be no family transfers within platted subdivision. Further, having a subdivision denied and then attempting a family transfer is subject to greater scrutiny and grounds for denial of family transfer. Commissioner Blain inquired about the existing well on Lot 3; Mandeville replied that well would require an easement or moving the well. Commissioner Bullock asked about the petition to the Montana Department of Natural Resources and Conservation sent by Edgar residents regarding the Edgar Ground Water Conservation Area; Mandeville replied that the DNRC responded to them with a deficiency letter (with a deadline extension), but they have not received response to deficiency letter. Harding, Gruel, and Maas expressed concerns about septic contamination and a diminishing aquifer. Sue Cross reported water flow issues on her property. Commissioner Blain asked about water rights; Mandeville stated the subdivision would have New Prosperity Ditch rights. Commissioner Blain posed the possibility that that perhaps the subdivided properties would be irrigated anyway. Commissioner Blain pointed that some lots in Edgar have 3 wells; Harding stated most of those only have one usable because the others are sanded up. Commissioner Blain noted that he has received some public comment outside of this meeting that is contrary to what is being said now. Moyers noted that his clients have gone through and met all conditions as outlined by Planning Board. He stated the reason Edgar moved to sewer decades ago is due to the common rural problem of outgrowing septic (lot size constraints in town), the same being true for

Cooke City. Commissioner Blain noted that DNRC has approved it, the Planning Board has approved it four times, and respects private property rights when rules are followed. Mandeville stated the land is not “zoned” agricultural and follows Development Regulations regarding lifting agricultural covenants. Discussion regarding adding a condition to not further subdivide. Commissioner Blain noted that no one can require a landowner to flood irrigate vs. pivot or sprinkler irrigate and there are no guarantees on future use even if not subdivided. Commissioner Bullock asked Commissioner Blain whether he would like to add conditions that an easement be required for one well in the isolation zone and no further subdivision of the 20 acres as a statement on the plat; Commissioner Blain confirmed the additions to his original motion. Metzger asked about any new wells and the GWCA; Mandeville stated new wells would fall under DNRC monitoring; Commissioner Blain asked Mandeville what would happen if the property owners in the subdivision wanted to add more homes; Mandeville stated they would need to apply for a Group 1 Development Permit, a septic permit, and cited Conditional Use Permit for more than three homes. Public Comment closed. Commissioner Blain and Bullock voted in support; Commissioner Miller against. Motion carried.
Administrative Officer Angela Newell joined the meeting.
10:30 Preliminary Plat Willow Creek Subdivision. Attended by Red Lodge Surveying Kate Stout, Stovall and Guerrero. Mandeville detailed that Red Lodge Surveying, on behalf of the Deano Unlimited Family Trust, has submitted a preliminary plat application for a two-lot subsequent minor subdivision on an 8.48-acre tract. The original tract was created with the platting of Creek Hill Subdivision, being Lot 13 of that subdivision. Therefore, this subdivision is a subsequent minor subdivision, which is reviewed as a major subdivision.
The subject property is located on Red Lodge Creek Road, approximately ¼ mile north of the intersection with Highway 78. The property is legally described as Lot 13, Creek Hill Subdivision, Plat No. 1786, located in the SW ¼ of Section 16, Township 7 South, Range 20 East, P.M.M., Carbon County, Montana.
The Carbon County Planning Board held a public hearing and considered this subdivision during their regular meeting of June 15, 2021, and accepted public comment; the Planning Board did not amend the finding or conditions based on public comment. Following the public hearing, the Carbon County Planning Board unanimously recommended approval of the Willow Creek Subdivision, pursuant to the following conditions:

1. Filing of the final plat shall be subject to the review and approval by the Montana Department of Environmental Quality.
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. A Weed Bond shall be in place to the satisfaction of the Carbon County Weed District.
5. The final plat shall be prepared and reviewed in accordance with Section IV-C of the Carbon County Subdivision Regulations and the Uniform Standards for Final Subdivision Plats (24.183.1107, ARM).
Commissioner Miller moved to approve of the Willow Creek Subdivision, with the findings and conditions included in the project memorandum; Commissioner Blain seconded; no further discussion; no public comment; motion carried.
11:00 Public Hearing – Fiscal Year 2020-2021 Budget Amendment attended by Guerrero. Newell detailed budget amendments which are largely due to COVID-19 CARES Act reimbursements. Commissioner Blain moved to approve Resolution 2021-18 Fiscal Year 2020-2021 Budget Amendment; Commissioner Miller seconded; no further discussion; no public comment; motion carried. Guerrero departed.
11:30 Sanitarian Internal Hiring Review. Sanitarian Cortney Lynde and Assistant Sanitarian Lori Kane joining. Newell detailed that only one Letter of Interest was supplied – by current employee Barbara Krizek. Lynde’s last day will be August 13th but can continue in a limited on-call, as-needed basis. Registered Sanitarian Scott Vandell will be brought on as a temporary employee at 100% of Elected Base to conduct inspections and function as official trainer for Krizek as Sanitarian-In-Training. Commissioners approved Krizek to start at 85% of Elected Base salary, and 90% upon becoming a Registered Sanitarian, and will wait until the August 3 Detention Facility election to determine how/whether to back-fill Commissioners’ Secretary position.
Commissioner Miller moved to approve Commissioner Proceedings for June 8; Commissioner Blain seconded; motion carried.
12:00 Board of Health Meeting. In attendance: Commissioners Bill Bullock, Scott Blain, and Scott Miller; Administrative Officer Angela Newell; Commissioners’ Secretary Barbara Krizek; Disaster and Emergency Services Coordinator Cyrina Allen; Geospatial Information Systems Coordinator / Fire Warden Tom Kohley; Sanitarian Cortney Lynde; Assistant Sanitarian Lori Kane; Public Health Roberta Cady, Sheila Boggio; Emergency Preparedness Jason Mahoney; Mental Health Center Rod Ostermiller; Beartooth Hospital Holly Lucara; Dick Nolan; Becky Frank; Stacie Warehime; Steve Thuesen. Commissioner Blain moved to approve minutes from April 29 (attached); Frank seconded; motion carried.
1:15 Fire Conditions – Stage Restrictions/Fireworks. In attendance: Kohley, Allen, Moldenhauer, Thuesen, Guerrero, Doug Anderson, Linda Anderson, Diane Schwartz, Randolph Tracy, Karen Walmsley, Susan Wadsworth, Karin Solberg, Polly Richter, Deputy Clerk and Recorder Lola Ashby, KULR-8, Vance Thuesen, Victoria Porter, Eli Elliott, Jael Kampfe, County Attorney Alex Nixon, Amy Romeijn, Debbie Surwill, and Sue Logan. Kohley detailed current fire conditions, specifically Stage 1 vs. Stage 2 Fire Conditions and the criteria for each. He stated there is an Initial Attack (IA) team contingency in place for the Robertson Draw (nearly 30k acres) and Crooked Creek fires. Regarding fireworks, Commissioner Bullock had provided MACo’s interpretation on statute to Nixon for his opinion; Nixon concurred with MACo (vs. Yellowstone County which has prohibited fireworks in the County except for municipal-sponsored). Commissioner Bullock noted that major fires have not been caused by fireworks but by people making poor decisions and not following rules (for example, the recent Robertson Draw fire was allegedly started by someone operating a motorcycle on an unmotorized trail). Kohley reported that six of seven local Fire Chiefs agree that we are at thresholds for Stage 2. Discussion regarding the consequences for entering Stage 2 for pipeline welders, construction, agriculture. Exemptions to Stage 2 restrictions can be made for uses such as agriculture. Due to hot/dry conditions forecast for the weekend, Commissioner Blain supported Stage 2 with agricultural exemption, and to not include fireworks ban. Nixon detailed differences between municipal and county legal authority and felt the County doesn’t have a clear-cut authority to ban fireworks. Commissioner Miller expressed his preference to honor personal liberty with expectations of personal responsibility/consequences. Commissioner Blain supported entering into Stage 2 restrictions with agricultural and road/residential/commercial construction exemptions; Kohley will draft a resolution for Thursday. Kohley stated there is funding from DNRC to pay personnel to staff local fire departments all summer long; Auto-Aid Level 1 for neighboring districts so when there is a fire there are two districts available to respond for every fire.
2:00 Airport Consultant Services meeting with Lance Bowser of Robert Peccia & Associates (RPA). In attendance: Airport Board members Merrill Pfeifer, Steve Smith and Gary Herem; Airport Manager Jeff Wise; Hangar owners: Lance Brill, Andy Teetzel, Bo Ewald, and Alex Lake; Northwestern Energy Calista Montgomery; Steve Thuesen; and Kit Moldenhauer. Bowser provided a PowerPoint presentation noting that for Red Lodge Airport to participate in the FAA’s Airport Improvement Program (AIP), it will be obligated for 20 years following development projects. Bowser pointed to the southern portion of Airport Road at the end of Runway 34 and why it doesn’t currently meet FAA standards (20:1 protection zone) and provided options to rectify. He urged protection of the North end of the airport (the private, undeveloped properties North of Highway 78) and stated a purchase of the land could be FAA-reimbursable. Bowser detailed funding options for the Master Plan (FAA funds 90% and another airport can lend Red Lodge it’s FY2022 allocation instead of waiting until FY2023).
3:30 Adjourned.

Respectfully submitted: Barbara Krizek, Commissioners’ Secretary