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

SB 442 Override Letter - April 6

September 24, 2018

September 24, 2018
Commissioners Robert ‘Pits’ DeArmond, Scott Blain, and Bill Bullock, and Administrative Officer Angela Newell were present.
8:30 Pledge of Allegiance.
Public Comment: Mary Cameron met with Commissioners to request they work to get a Public Assistance representative in the County once a month. Commissioner Bullock noted in conversations they have had, the State does not seem receptive to those options.
Commissioners received a letter of resignation from Kenneth Palmer on the Belfry Cemetery District.
8:45 Commissioner Blain moved to approve the Justice Court End of Period Disbursement for August 2018; Commissioner DeArmond seconded; motion carried.
9:00 Windmill Farms Subdivision Preliminary Plat Approval. Contract Planner Forrest Mandeville, Jamie Walters, Debbie Grewell, Marley Grewell, John L. Edwards, Greg Nelson, Nev Harding, Denise Maas, Ken Metzger, Debby Elton, Betty Pool, Randy Foos, Diana Foos, Tom Spitzer, Jerry Spitzer, Doreen Harrison, Victoria Ganley, Jeff Rice, Linda Blain, Beverly Haggerty, Lee Foos, Justin Foos, Curtis Brubaker, Sharon Vandiver, Mike Vandiver, Michael Indelicato, Denise Conner, Craig Dalton, and Bruce Tonn were present. Commissioner Bullock opened the meeting and turned it over to Forrest. Forrest reviewed his staff report including the primary review criteria and information from the subsequent public hearing. Forrest noted per the timeline set forth in the Subdivision Regulations a decision must be made today unless the developer and Commissioners agree to extend the timeline. Forrest discussed what information Commissioners must use to make their decision and reviewed the new findings of the Planning Board (attached).
Forrest noted a drilling company hired by the Developer reported the aquifer under the proposed subdivision was strong. However resident Nev Harding also submitted data showing limited seasonal water availability and a petition regarding water rights availability. The Commissioners accepted the Planning Board’s additional findings as noted above.
Forrest reviewed the summary of probable impacts and public comments and the Planning Board’s evaluation of those comments received at the subsequent Public Hearing on August 21st (attached).

The Planning Board noted further development would require additional subdivision review and moved recommended approval with conditions in a 4 to 1 vote with one abstention. Conditions recommended by the Planning Board are attached.
9:40 Commissioner Bullock opened the meeting to public comment:
Michael Indelicato expressed frustration with the subdivision review and approval process as he did not receive any notice of the Subdivision public hearing schedule. Forrest noted his property is not adjacent to subdivision and was not required to be noticed.
Nev Harding reviewed the data he presented at the Planning Board Public Hearing in August. He believes the burden should be on the Windmill Farms developer to prove the subdivision will not impact existing Edgar resident wells. Nev also noted a Controlled Ground Water Area petition had been submitted to the State DNRC; if approved, it would control drilling of additional wells. Nev believes his data demonstrates the current water volume required for residential and agriculture use are at the aquifer’s maximum capacity; he believes the subdivision will require more water than what is available. There are eight (8) monitoring wells that have provided the data for the Controlled Ground Water Area petition and he believes the data proves the sensitive nature of the aquifer. Nev also read an email from the DEQ stating, the local planning act level is where to prevent subdivisions; DEQ is rarely in a place to prevent the division of land. Nev also expressed concerns about the availability of the water rights the Subdivision is proposing to use. He stated agricultural water would not be available for subdivision use per a conversation he had with the water board. Commissioner Blain asked Nev about the data presented; Nev noted the aquifer had done better in dry years where there has been agricultural irrigation.
Jamie Walters noted Edgar residents are trying to protect themselves from impacts of development and are not trying to stop development. She noted landowners are paying for the Controlled Ground Water Area study at their own expense of $15,000-$20,000. She noted her well water depth was a 9 ft on September 20, 2017; this year it was at 17 ft; she believes reduced flood irrigation have affected the ability of the aquifer to refill and is the main factor in the water depth decrease. Jamie also noted had the subdivision had been proposed with the original 20 lots it would have been subject to a study by the DNRC.
Linda Blain asked for clarification on the Planning Boards condition #16. Forrest noted if the condition is imposed, the developer would have 2 years to meet conditions or will have to request an extension. Final Plat application would be submitted to the Commissioners and they would determine if conditions were met. Jamie Walters noted the condition does not consider impacts on existing landowners.
Jeff Rice with TetraTech suggested that an engineer may not be the appropriate person to water availability.
Commissioner Blain asked if there was a professional better suited to make that determination. Jeff noted the City of Billings now requires a qualified hydrogeologist to sign off on dewatering projects. Commissioner DeArmond agreed a professional with qualifications to evaluate groundwater would be more appropriate. Nev asked if the testing requirement could be applied to two separate years; Commissioner Bullock the timelines are specified in the subdivision regulations and should conform to those regulations.
Jamie Walters noted existing residents have had to disclose water issues in real-estate transactions. She believes the lots may not be sellable if the water issues are not addressed and is concerned about future buyers.
Craig Dalton representing the Developers noted there are already 16 conditions being proposed for the project; he confirmed the developer is not opposed to condition 16 requiring water monitoring. Craig confirmed that documentation will have to be provided to satisfy conditions of approval before development can start. He noted that if the project was not approved today it cannot move forward with getting the approvals from other agencies set forth in the conditions. Through the State’s permitting process both the Planning Board and publics comments are required to be submitted.
Commissioner Blain noted DNRC’s assumed use per lot of 3.5 acre feet would put the subdivision’s water use above the 10 acre feet proposed in the application. He is concerned that this would require more water that is not available. With the water rights and availability issues outstanding, he is not comfortable approving the subdivision today. He is also concerned that proposed conditions do not protect the water availability of existing Edgar residents.
Justin Foos noted he has farmed in the area for a number of years. He believes the lack of irrigation on the 30-acre parcel where the subdivision is being proposed has resulted in low water for area wells. He noted their farming operation regularly relies on Cooney Dam water to supplement ditch water once it has been turned off.
Forrest noted the developer has the option to withdraw and resubmit the application. Extending the time frame could produce more information that has not been heard at a public hearing. Forrest noted the Commissioners could amend the findings of the Planning Board to support their decision. Forrest noted Commissioners need to make findings to justify their decision. DNRC does assume water use at 3.5 acre feet per lot, but it is very common for them to decrease that amount.
Commissioner Blain asked about existing users of the new Prosperity Ditch; Justin Foos stated the ditch runs past Gruel’s, the Windmill 312 property, and then to them.
Doreen Harrison asked why the subdivision did not propose cisterns and expressed concerns about the subdivision forcing cisterns on existing residents if available water is used up by the subdivision.
Greg Nelson expressed concerns about run off and septic drain fields negatively impacting water quality. He also believes the light pollution from the subdivision would have a negative impact on wildlife.
Debbie Grewell noted her well received a lot of sand when test wells were drilled. She is concerned that an increase in wells will impact existing wells and could cause residents to incur costs to more frequently maintain their wells and replace pumps. She believes the developer should consider cisterns.
Mike Indelicato urged the Commissioners to deny the application. He stated starting the process again would help address his concerns with impacts to wildlife. He noted that some of these issues could have been addressed if the developer had addressed the town at the beginning of the process.
Debby Elton noted she is considering leaving Edgar because of the impact she believes the subdivision will have on her property. She is concerned about the long-term impacts to the aquifer and sustainability of Edgar if the aquifer is contaminated.
10:30 Carbon County News Reporter Eleanor Guerrero joined the meeting.
Commissioner Bullock expressed concerns about the proposed RSIDs. He noted there are no RSIDs currently in the County; he does not want to set the precedent that the County will manage issues instead of a home owners association as has been the historical practice.
Commissioner Blain endorsed Commissioner Bullock’s statements regarding RSIDs. He also noted the application proposes to dedicate the subdivision roads to the County which he is opposed to. For the record Commissioner Blain noted Linda Blain is his Aunt, but has no interest in her property in Edgar.
Jamie Walters asked about the Planning Board’s voting procedure at the last public hearing. Forrest noted there were 5 of 9 members present at last meeting giving them a quorum. The recommendation passed with 4 voting to approve with conditions and one abstention. Forrest noted the Planning Board was given the opportunity to deny, approve, or conditionally approve the subdivision.
Betty Pool asked if consideration of what happens to existing wells when test refill rate of aquifer for subdivision. Jeff noted would consider wells within 100’ should not affect whole aquifer. When developer does similar testing, Betty asked if measure how impacts town wells.
Commissioner DeArmond asked about Cooney water. Forrest and Justin Foos confirmed the issue is not settled as the developer is still waiting on a determination from the Dam Board. Forrest noted a condition could be imposed that water be used for irrigation as proposed in application. Commissioner Bullock asked how that would be implemented. Forrest noted the Commissioners could add a finding regarding impacts on agriculture and impose a condition to mitigate.
Nev Harding asked if condition could be imposed to allow an alternate source of water like cisterns. Forrest noted there is a condition of DEQ approval that could require cisterns if the controlled ground water area was created. Nev asked about the DEQ letter stating the Department is rarely in a place to prevent development. Forrest clarified that the division and configuration of lots under the subdivision process is not a DEQ issue; they will only address water, wastewater, drainage, and solid waste issues.
Lee Foos expressed concerns about the ‘98 water in the Prosperity Ditch; he is not sure it can be used by the subdivision.
10:55 Pubic Comment closed.
Commissioner Blain moved to amend the findings to include the lack of data to support the availability of water, to remove mention of RSID for roads, and to deny the subdivision as submitted; Commissioner DeArmond seconded; motion carried.
11:30 Commissioner DeArmond moved to approve State Homeland Security Grant Articles of Agreement and Obligating Documents for Sheriff’s Office Enhancement of County LMRS for Emergency Communications (radio repeaters) and DES Incident Traffic Control Trailer; Commissioner Blain seconded; motion carried.
11:40 Sheriff Josh McQuillan met with Commissioners regarding reinstating the County’s K9 unit. He is proposing to use the fund balance in the drug forfeiture funds pay for the program; currently there is just und $24,000 between the two funds. Sheriff McQuillan believes the addition of a K9 would increase drug cases and forfeitures should sustain the program. The office has the opportunity to purchase a 3.5 year old German Shepard from another agency for $4,000. The dog has a good health, performance, and behavioral record and is being disposed of because the department
September 24, 2018 (cont.)
cannot find another handler. Sheriff McQuillan believes the dog has a work life of another 6 years. Commissioner Bullock noted concerns about staff availability and cost for the handler to maintain his certifications. Commissioners requested Sheriff McQuillan confirm liability coverage, and review issues concerning handler overtime, and what a stipend would be used for and how it would be treated for accounting purposes.

Commissioner Blain moved to approve claims for first September 2018 check run for 4-H and FAA premiums; Commissioner Bullock seconded; motion carried.
12:15 Adjourned

Respectfully submitted: Angela Newell, Administrative Officer