The Planning and Regulations Committee of the DeKalb County Board met on April 23, 2003 at 7:30 p.m. in the DeKalb County Administration Building, Conference Room East. In attendance were Committee Members Roger Steimel, Clifford Simonson, Marlene Allen, Howard Lyle, James MacMurdo, Stephen Slack, Patricia Vary, Dennis Sands and Eileen Dubin, and staff members Paul Miller and Marcellus Anderson. Also in attendance were Bill Lorence of the Highway Department, State’s Attorney Ron Matekaitis, Chief Building Inspector Toby Petrie, and Building Inspector Gary Taylor. Audience members included Greg Millburg, David Munson, Tammy Otto, Mike Otto, Linda Munson, Art Benson, Craig Stevenson, Gary Cordes, Diane Strand, Wiley Zabel, Rev. David Kaul, Joan Kaul, Barb Duro, Grant Bonner, Carolyn Bonner, Janet Parchert, Rebecca Kinney, Bonnie Bauer, Gail Schulter, Mary Carlson, Bob Schewe, Dennis Wetterich, Jim Swanson, Mary Jones, Jean Chlup, Ruth Anne LeBost, William Hall, Donald Stahl, Douglas Stahl, Roger Hintzsche, Judy Heller, Cindy Fraser, Bruce Fraser, William Heller, Terry Wickwire, Greg Koster, Terri Bogdesi, Jeff Beverage, Judd Zeppert, Stephen Carlson, John Kelleher, Sandra Kepka.

Mrs. Dubin moved to approve the minutes of the March 26, 2003 meeting of the Planning and Regulations Committee, seconded by Mr. Lyle, and the motion carried unanimously.

APPROVAL OF AGENDA

Mr. MacMurdo moved to approve the agenda, seconded by Mr. Sands, and the motion carried unanimously.

ZONING MAP AMENDMENT AND SPECIAL USE PERMIT – Request of Our Savior’s Lutheran Church to re-zone a vacant 11-acre parcel located at the northwest corner of Pratt and West Sandwich Road in Sandwich Township from PD-R to A-1, and grant a Special Use Permit ro allow construction and operation of a church, Petition SA-03-4. The issue had been tabled at the County Board meeting of April 16, 2003 to allow additional Committee consideration.

Mr. Steimel asked Bill Lorence if he had been given a chance to review the plans of the Church. Mr. Lorence responded that he had reviewed the plans and with respect to drainage and grading, they met or exceeded the County requirements. Mr. Steimel asked if the detention was adequate and Mr. Lorence responded that the detention was more than adequate because the release rate they are using exceeds the County release rate and was closer to the City’s higher rate. Mr. Steimel noted that there were several concerns regarding storm water drainage in the area of the proposed church. Mr. Lorence began by clarifying that the storm water issues of the area were not directly relevant to a discussion of the church’s engineering plan, since County standards do not call for an applicant to improve the storm water issues of surrounding properties; a developer simply cannot exacerbate whatever conditions current exists. The plans for the church currently meet that standard. He then went on to say that he has had discussions with the Road Commissioner regarding the existing conditions and the Commissioner has agreed to a suggestion made by the petitioners’ engineer that two additional 24" pipes be placed across Pratt Road to address current drainage issues. However, the City of Sandwich has expressed concerns that such a plan would increase the rate of flow down towards the City. Mr. Lorence suggested that one way to alleviate that would be to direct the proposed crossroads pipes through the natural drainage flow to a slough hole being made into a detention pond currently under construction for a subdivision in the Village, and then under the Fairground entrance road via a 48" pipe to Somonauk Creek. The County Highway Department has also been requested by the Township to prepare engineering studies to determine if it is feasible to ditch all the way to the Creek along Pratt Road. Mr. MacMurdo asked which side of Pratt was being considered for the ditching. Mr. Lorence responded that it would be along whichever side made more sense, but that currently they were looking at the north side. That side has more driveways than the south side. The proposed ditch is expected to be rather deep. The Road Commissioner has expressed concern about the expense of the ditch and has stated that if it can be done for an amount equal to the two additional 24" pipes, he would be willing to proceed. The Commissioner and the Mayor of Sandwich are entering into conversations with the two major property owners along the west about providing rights of way for the ditch. Mr. Steimel commended Mr. Lorence for the work and consultation he has put into this effort to improve the storm water issues. Mr. Lorence added that West Sandwich Road is about the ridge line of the flat area. City wishes to keep water west of west Sandwich Road. There are plans in place to build a new road that will redirect traffic between the City and fairgrounds and down into LaSalle County. Additional provisions are also being made to deal with these issues and provide for drainage elsewhere.

Mr. Steimel then called on Mr. Miller to review the criteria the County Board must use to make a decision on the petition. Mr. Miller noted that there are two items in play in the request. The first is to change the zoning of the property from PD-R to A-1. He reviewed the evaluation criteria for Map Amendments that are set forth in the County Zoning Ordinance. The second part of the petitioner’s request is for a Special Use Permit in the A-1 District to accommodate the proposed church. Mr. Miller reviewed the criteria for evaluating Special Use requests.

Mr. Slack asked why the church elected to ask for a zoning change as well as a Special Use rather than just applying for a Special Use in the PD-R district. Mr. Miller responded that while it would have been theoretically possible to go that route, it would also have been unusual. The PD-R District was intended to be used for planned developments, which are projects that typically cover a greater area and may involve a variety of uses and creative design. It was his advice that down-zoning to the A-1 and requesting the Special Use made more sense.

Ms. Vary asked to clarify that the routing of water from the new developments would route the water to the north side of Pratt road. Mr. Lorence responded by reminding Ms. Vary that the proposed changes that would effect the Pratt Road water flow were not related to the church plans, but rather to the plans of the Road Commissioner and Township. He noted that the improved ditch capacity would likely involve the north side of Pratt.

Mr. Simonson stated that, in his opinion, the zoning hearing process was strongly skewed to the advantage of the petitioner. He noted that while the petitioner had time prior to the public hearing to prepare their arguments, the public had only approximately 15 days to prepare their responses. In light of this and the fact that he believed there were still a number of issues beyond the drainage and storm water to deal with, he felt that providing the public additional time to present arguments was appropriate. He went on to say that he believed there was additional information distributed to the Committee that the public could not respond to.

Mr. Simonson moved to reopen the public hearing for Our Savior’s Church, to be held in the evening to allow additional testimony from interested parties, seconded by Mr. Sands.

Mr. Steimel called for questions. Mr. Sands commented that his purpose in seconding the motion was not to indicate opposition to the project, but rather that he was troubled by the idea that perhaps the Committee had been given additional information beyond that which was considered at the public hearing and that there would likely be benefit from letting another hearing be held to answer the questions of those concerned. Mr. Slack asked if a second public hearing required that the entire process start fresh again with all evidence that had already been presented repeated and all individuals re-sworn in. Mr. Miller noted that it would be his understanding that this would not be a new hearing, but rather a continuation not requiring the same notification requirements or re-presentation of already presented testimony. However, individuals would need to be sworn in again. Mr. Slack asked then if the idea would be to hear new evidence that had come to light since the last public hearing. Mr. Miller noted that there would be opportunity for additional testimony or evidence. Mr. Slack then asked to clarify that all the Committee could consider tonight would be that evidence that had been presented at the public hearing. Mr. Matekaitis clarified that the information provided by Mr. Lorence would not fall under that preclusion as it was information that under our procedures would never have to be submitted as part of the application. This would typically not be information determined by the County Engineer until later in the process, when the project had gone to the engineering stage. As to drainage, any proposal for drainage would have to meet County Code. So, in effect what Mr. Lorence has brought before the Committee is information that typically would not be available until the engineering stage of a project review. That one issue, in and of itself, would not require the Committee to go back to a public hearing in order to make it a part of the record. This is information not required to be submitted as part of the application and in the normal course of our procedures would not have been provided until after the proposal would have been approved and engineering plans submitted for his determination of whether the plans meet County Code.

Mr. Steimel then asked Mr. Miller to review the notification schedule that had been used. Mr. Miller responded that the notice for the public hearing appeared in the newspaper 18 days before the hearing took place. The notice to adjoining property owners was mailed five days prior to that and the sign was placed on the property 15 days prior to the hearing. Mr. Steimel asked if the notice sent clearly indicated that materials were available for review in the Planning and Zoning Office prior to the hearing. Mr. Miller responded that it did. Mr. Slack asked to clarify the difference between surrounding property owners and adjoining property owners for purposes of notification. Mr. Miller responded that DeKalb County notifies adjoining landowners, those whose property actually touches the property involved in the application, or would touch of the roads weren’t there. He went on to say that the County deals with surrounding landowners via the newspaper notice and the sign on the site. Mr. Slack asked if the newspaper used was the Sandwich Record. Mr. Miller responded that the newspaper that satisfied the statutory requirement to be of "general circulation in the County" was the DeKalb Chronicle, and that was the paper used.

Mr. Steimel noted that based on Mr. Matekaitis’ report that the information presented tonight by Mr. Lorence would not constitute new information for the legal record, and the fact that the information verified that the plan submitted by the church met or exceeded County requirements, he could not see a reason to hold another public hearing. Mr. Simonson countered that the reason for a new hearing was to give the opposition an opportunity to respond to Mr. Lorence’s report. He then called the question. Mr. Slack asked if it was appropriate for the maker of the motion to call the question. Mr. Matekaitis advised that there needed to be a polling of the Committee as a whole as to whether the question should be called.

Mr. Steimel polled the Committee on calling the question. The vote carried with eight in favor and Mrs. Allen abstaining.

A roll call vote was held on the motion to return the petition of Our Savior Lutheran to public hearing, and the motion carried with seven Committee members in favor, Mr. Steimel opposed, and Mrs. Allen abstaining.

Mr. Steimel asked if Mr. Miller would please make arrangements for reopening the hearing and apprise the Committee members of the new hearing date and time.

USE VARIATION –Request of Richard and Kenneth Hintzsche for approval to build a house on a 4.25-acre property located on the north side of Keslinger Road in Pierce Township, Petition PI-03-7.

Mr. Miller began by reporting that Kenneth and Richard Hintzsche, the property owners, have filed a petition for a Use Variation for a vacant 4.25 acre parcel located on the north side of Keslinger Road, approximately 710 feet east of Chase Road, in Pierce Township. The petition is to allow the construction of one single-family detached dwelling on an agriculturally-zoned parcel of less than 40 acres in size. The subject property is zoned A-1, Agricultural District.

A public hearing on the requested Use Variance was held by DeKalb County Hearing Officer Kevin Buick on April 10, 2003. The petitioner testified that the property was split from the surrounding farm in 1967 in order to construct a hog confinement operation. That operation was subsequently discontinued and removed, and since 1985 the subject property has been in row-crop production as part of the surrounding acreage. The petitioner asserted that the 4.25 acres should be viewed as a separate parcel, and is not viable for agriculture on its own. One member of the public asked a question regarding the petition. No members of the public spoke in favor of or in opposition to the request. The Hearing Officer has submitted his Findings of Fact and recommends denial of the Use Variance. This finding is based on the review of the intent of the Use Variation provision, which was created for parcels that were split off for the purpose of building a house and subsequently held for that purpose. The subject property was not split off for purposes of building a house, but rather for the hog confinement facility.

Mr. Sands asked if the discussion at hand was whether or not to support the Hearing Officer’s findings. Mr. Miller clarified that the discussion was whether or not to approve the petitioner’s request, approve the request with conditions, or to deny the request.

Ms. Vary commented that this issue falls into the category of why land is kept to agricultural use, and that a hardship did not appear to be occurring, and therefore she agreed with the Hearing Officer’s findings.

Mr. MacMurdo moved to deny the requested Use Variation, seconded by Ms. Vary.

Mr. MacMurdo commented that he had visited the property and had seen that the land was clearly tillable and viable for agricultural usage. This, coupled with the fact that the requested use does not fall within the property uses indicated on the Comprehensive Plan, lead him to move for denial of the request. Mr. Simonson noted that the parcel is part of a larger parcel and it fit very well into the current farming usage of that larger parcel. Mrs. Allen asked if the parcel in question was a lot of record. Mr. Miller responded that it was split prior to 1976, so it would be a lot of record.

Following comments, the motion carried with eight votes in support and Mrs. Allen opposed.

DISCUSSION ITEM – Possible amendments to the text of the Zoning Ordinance and County Code regarding wind tower building permit and zoning action fees.

Mr. Steimel began by commenting that this had been a discussion at an earlier meeting. He asked Mr. Miller to review the issue at hand. Mr. Miller noted that the original issue had been a discussion with the Committee to establish a fee specific to wind towers following the wind tower project approval in January. The Committee at that time raised the issue of whether there were extraordinary costs to the County associated with the wind farm project beyond the typical costs for processing and inspections, especially concerning the 30-plus conditions to the project that would need to be administered. Mr. Miller noted that he had broadened his original memorandum and also added a section to discuss a possible amendment to the zoning fees to require applicants to pay the direct and actual costs of public notification and that fees be adjusted to account for that.

Mr. Miller began with a discussion of the component regarding the wind farm fee. He noted that two other counties have adopted a fee of $25 per linear foot based solely on the fact that this is the fee they charge for cellular towers. Research into where that fee came from indicate that it originated from a Kane County analysis of its costs to its staff to administer the telecommunications provisions of the State law under the County zoning authority. Kane County apparently felt that the costs of reviewing plans, monitoring fences, setbacks, electrical connections and foundations and the resulting inspections could translate into a cost incurred that could equal the $25 per linear foot fee. However, there is no direct documentation to support this. At this time, no county contacted has any documentation to support their election of the $25 per foot cost. Regardless of that, the issues involved in cellular towers are not directly relevant to discussions of wind towers. The fee recommendation made by Mr. Miller, therefore, took into account actual staff time for the building permit only. The staff involved would be for himself, the building inspector’s time, the time of the assistant planner and finally a component for clerical processing. That fee was then doubled to cover various overhead items. This approach is consistent with advice received from the State’s Attorney’s Office that permit fees should be based on direct costs incurred.

Mr. MacMurdo asked Mr. Matekaitis to expend on his advice regarding permit fee limitations. Mr. Matekaitis responded that Mr. Miller had accurately reflected the State’s Attorney’s advice on this specific question. He then went on to provide the Committee with an explanation of the differences between Home Rule and non-Home Rule communities. He noted that as a non-home rule entity, DeKalb County cannot tax in as liberal a fashion as Home Rule communities could. In specific, Home Rule communities may exact fees in excess of costs. Non-Home Rule communities must set fees that have a relationship to the costs incurred and provided in our regulatory authority. Doubling the direct costs should more than provide for a wide parameter for allowing for differences in wind tower siting issues or building permit purposes. It leaves the County some authority to stand before a judge and say "this is what this is based on." In Mr. Matekaitis’s opinion, using a rationale that consists solely of saying "this is what other counties do" does not constitute good advice or defense. The fees charged should have a direct and defensible relationship to the costs incurred by the County. He noted also that the building permit fee is just one small component of the fees incurred to the applicant. In addition to this fee there are also application fees, consultants fees incurred as well as other specified costs that are passed directly to the applicant. The ability to reasonably identify the costs incurred to the County that make up the building fee component, places the County is in a good position if challenged. He concluded by noting that if the Committee elects to go higher in a permit fee than costs can account for reasonably, then that enters into riskier territory. Mr. Steimel asked if Mr. Matekaitis could discuss the additional fees that it would be allowable to charge to the applicant. Mr. Matekaitis asked Mr. Miller to review the costs associated with the various phases of the application. Mr. Miller noted that one way to defray the costs of implementing conditions defer costs is through the use of consultants, the full cost of which is passed to the applicant. One example of this would be the proposed Homesellers Protection Program associated with the wind farm project. Because the applicant has generated this expense to the County, it would therefore be appropriate for the applicant to bear the full cost. There would be no need for this to be staffed by County employees as a consultant could be brought on to administer the program. Mr. MacMurdo asked who would have the right to select the consultant, the applicant or the County. Mr. Miller responded that the County would, though the County could opt to allow the applicant the right to pick a candidate and the County could simply approve that selection.

Mr. Miller went on to note that the authority of the County to use consultants and have applicants reimburse the costs is set forth in the subdivision regulations. It has always been assumed to be in the zoning ordinance as well, and in the adopted building codes. However, the actual language in the zoning ordinance and building codes simply implies permission rather than overtly granting it. He noted that there is a recommendation in his staff report to take action to clearly allow the County to use consultants at the applicant’s expense. Mr. Steimel clarified for the Committee that these costs go above and beyond the proposed $550 permit fee. Mr. Miller added that there is also a conversation to be had regarding the implementation responsibilities and how much of the staff work should fall within the general work expectations of their positions. Where do the day-to-day duties stop and where does "extra work" begin. This is a critical question to be considered when deciding whether or not to bring on consultants. There is a level of discretion of the various needs of each individual project that must be considered prior to bringing on additional help. Mr. Matekaitis noted an example of a Special Use Permit for a project that involved above ground storage tanks. In that instance, the County may want to require the applicant to pay for the cost of an annual inspection for structural integrity etc. This is clearly beyond the scope of the responsibilities and capabilities of the existing staff and would require supplemental staff to perform. Charging that type of inspection cost against the applicant would be perfectly reasonable. However, in the instance that a citizen contacts the office to ask a question, even though the content may not have occurred but for a specific project, it would not be appropriate to consider responding to that question beyond the scope of the staff duties.

Mrs. Allen commented that she had concerns about whether or not a consultant would take the same positions as the staff. Could they openly disagree with how something was handled by staff? Mr. MacMurdo noted that most consultants tend to not disagree with the individuals who are paying them. Mr. Miller agreed and added that it was highly unlikely that a consultant would cause a conflict situation. Ms. Vary asked if there were any concern about staff off-loading too much of their day-to-day duties to outside consultants. Mr. Matekaitis noted that there were several checks and balances in place to alert the Board to any such abuses. First and foremost would be the likely feedback from the public who may feel the charges are excessive. Mr. Miller added that the most obvious check and balance would be the budget oversight by the Committee, which would clearly show any excess use of consulting services because the County pays the consultants and receives reimbursements from the applicants.

Mr. Sands asked Mr. Matekaitis why he would support having several separate fees rather than just building all the potential charges into the building permit fee solely. He felt that other Counties appeared to be doing this when they elected the higher $25 per foot fee structure. Mr. Matekaitis explained that first, it was highly unlikely that all these services would be needed on every permit, therefore allowing leeway of what fees should and should not be applied made the most sense. He went on to add that he felt that many of these fees were directly related to building permits. Mr. Sands reiterated that he felt that the County costs should be covered as much as possible by the single fee rather than spread over the series of cost deferment options that were being discussed. Mr. Matekaitis disagreed and noted that the costs that were incurred for supplemental services placed no burden on the County as the costs were passed directly to the applicant. Mr. Miller noted that his discussions with the counties that had adopted the $25/lineal foot fee for wind towers revealed that they did not base this fee upon the costs of administering other conditions of approval associated with wind farm projects.

Mr. Sands moved to set the fee for wind towers and cellular towers at $25 per linear foot, seconded by Mr. Simonson.

Mr. Steimel called for additional discussion. Mrs. Dubin noted that in previous discussions the fee issue was mostly related to the fact that this project was so new and unknown that it was very difficult to get a feel for how high or low an appropriate fee should be. This is leading the Committee to try to find a fee that will be sufficient to cover a reasonable amount of anticipated costs. Mr. Miller noted to the group that the State’s Attorney had advised that while it may be trying to find a way to have the building fee alone cover as large a portion of expenses as possible, that simply isn’t a defensible approach. Mr. Matekaitis added that he sees that the Committee is working very hard to make sure the County is not left responsible for costs it cannot recoup. He noted that Mr. Miller has made a well-considered study of the work his office will be required to handle and has produced a defensible figure. To set this fee at an artificially high level to cover costs that "might" occur does not seem the most prudent approach. He went on to suggest that it seemed much more prudent to set the fees against reasonably anticipated costs and then create options to charge the applicant for those additional specific costs that may occur in each individual project. Setting a fee artificially to cover anything and everything that might be needed or not is far less definitive than taking a more flexible approach. Mr. Steimel added that for those on the Committee who may feel that there may be administrative costs associated with taking on consultants, it may be important to remember that the property taxes on the towers are estimated to bring in between $35,000 and $40,000 to the County annually.

Mr. Slack asked if in the seven counties that have been studies regarding the cell tower fees, there had been any challenges of the fee structures. Mr. Matekaitis responded that, to his knowledge, there had not been. However, he added that he agreed with Mr. Miller that comparing cell towers to wind towers may be too much of an "apples to oranges" comparison at this point. Mr. Slack commented that as he looked to other areas fee structures, it would appear that many communities adopt far more liberal fees. He noted an example that a two-car garage permit in the city of DeKalb would cost $150, in Sycamore $55 and in North Aurora, $25 per square foot. He felt it was strange that North Aurora felt comfortable charging such a higher fee for a simpler structure and we were shying away from charging something near that amount for a far more complex structure. Mr. Matekaitis commented that using North Aurora as an example returns the conversation to the issue of Home Rule Communities. North Aurora, as a Home Rule community has a far greater ability to stretch permit fees and fee schedules than a non-Home Rule community would. Mr. Slack asked if they were not held then to the same standard of having to justify fees against costs. Mr. Matekaitis reiterated that they were not, that their power to tax afforded far more leeway to generate funds from permit fees. They may not call these greater fund levels "taxes", nor administer them as taxes, but they amount to a tax all the same. Mr. Slack went on to ask what the County would do if it were setting a permit fee for a nuclear power plant? Would there be such a low fee as well? Mr. Matekaitis noted that as with the wind towers, the benefit to the County would not be generated from the building permit, but rather from the property taxes on the structure. Mr. Slack noted that he held a personal belief that the County would likely not see property tax revenue generated from the wind towers, so it was difficult for him to accept the offset.

Mr. Lyle asked Mr. Miller if he felt he had sufficient existing staff to handle this new project. Mr. Miller responded that he did. Mr. Lyle then asked Mr. Miller to clarify again who would select any consultants brought on for the project. Mr. Miller responded that the County would dictate the selection.

Mr. Simonson stated that he was in agreement with Mr. Slack that the County would probably not see any significant property tax revenue, and that there idea that the County would see 18 million dollars in revenue over the life of the project was highly speculative. Mr. Simonson stated that his research indicates that there are two states that have elected to not charge property taxes on the wind towers at all, and others are allowing the wind towers to do a step program of property taxes. He concluded by noting that there may be legislation pending in Illinois that could be used to relieve the wind tower operators of taxes.

Mr. MacMurdo noted that the State’s Attorney has provided the Committee with honest and reasonable counsel that to set assess fees in excess of some reasonable multiple of the cost is not legal in the State of Illinois. He stated that he could not support an action by the Committee or the County Board in general that the Committee’s legal counsel is not in conformance with Illinois legal Statutes. Ms. Vary noted that it did seem, following the discussions, that the $25 per linear foot fee level was excessive. Mr. Steimel noted his agreement.

Mr. Sands reiterated his suggestion that one way to avoid this would be to not call this a building fee. He went on to ask Mr. Matekaitis how much time had already been spent on meetings about the subject between staff, and how was the expense for that to be accounted for? Mr. Matekaitis noted that he had three meetings and Mr. Slingerland of his office had some conversations. Mr. Sands pressed on that these costs needed to be paid for and if calling the fee something beyond a building fee would allow the County to recoup all costs needed. Mr. Matekaitis asked if it was Mr. Sands suggestion that every time a project was presented to the County that required any conversations with his office, he should keep track of that conversation and charge the applicant for every one of those discussions? Mr. Sands responded that the general issues the County has dealt with to date likely did not require that, but that these wind towers were so unknown and extraordinary that such an approach might be necessary. One area he mentioned was the time needed to implement the Homeowners Protection Plan. Mr. Matekaitis countered that he has had far more inquiry regarding hog farms than he has had for wind towers. He went on to add that it was his understanding that the Homeowners Protection Plan had already been clearly identified as a program the County would bring in consultants to administer to defer the costs. Mr. Sands commented that Mr. Miller’s memo seemed to indicate, to him, that the County could not offset the costs of the Homeowner’s Protection Program to the applicant. Mr. Matekaitis responded that was not his reading of Mr. Miller’s memo and that the conditions of the Special Use permit and the coded authority of Mr. Miller’s position clearly allowed for the full costs to be passed to the applicant.

Mr. Sands noted that he just wanted to be sure that the County was not left responsible for costs incurred that could not be recouped. Mr. Matekaitis commented that from what he sees, everyone is on the same page regarding protecting the County against any unrecoverable costs. The debate seemed to be in how best, and legally, to do that. Mr. Sands commented that Mr. Miller’s proposal to only recover $550 per tower could not accomplish that. Mr. Miller then explained again to the Committee that the recommended $550 fee was for the building permit portion of the costs only, and that the other administrative costs could be recovered through offset techniques such as the use of consultants and directly passing those costs to the applicant. He went on to add that he had asked Mr. Slingerland of the State’s Attorney’s office to do a study of whether calling the building fee by another name, such as an undefined "administrative fee", such as Mr. Sand’s was suggesting, would be a legal option. Mr. Slingerland’s conclusion was that it would not be legally allowable. This was based on the same principle that establishing such a nebulous fee would be tantamount to taxation and was not allowable. Beyond that there was also the issue that the County cannot treat FPL, or any applicant, differently from other Special Use applicants. This would apply to the fees charged or the policies applied.

Ms. Vary proposed a friendly amendment to Mr. Sand’s original motion to set the wind tower fee at $1,000, seconded by Mrs. Dubin. Mr. Sands refused to accept the friendly amendment. The original motion remained on the floor.

Mr. Steimel noted that he supported the $1,000 fee as being more adequate. Ms. Vary noted that she felt $1,000 per tower could still constitute a defensible fee based on the uncertainty of the costs that may occur which would not be covered by consultant fee offset, etc. Mrs. Allen asked Mr. Miller if he could, indeed, justify a $1,000 fee against his costs. Mr. Miller replied that his only response could be to say that the fee charged is what he was directed to charge by this body. He would have no further justification.

Mr. Matekaitis noted that the uncertainty of the project was likely heightening the anxiety over how to set this first fee in the structure. However, he noted that perhaps it would make the Committee’s work less anxious to remember that if they set a fee and then noted that the actual costs were higher after having done one or two towers, the fee could always be revisited and reset based on actual experience. However, he added that it would be prudent to not set the fee exorbitantly high and then reduce it following actual experience.

Mr. Simonson commented that in some experiences he has had, the costs were assumed too low. Also when the National Soil Survey was split from the Bureau of Soil Planners and Engineering, a large amount of money was budgeted for management.

Ms. Vary made an amended motion to set the building permit fee at $1,000, seconded by Mrs. Dubin.

The motion to amend failed with three members in support and Mr. Sands, Mrs. Allen, Mr. Lyle, Mr. MacMurdo, Mr. Simonson and Mr. Slack opposed .

Mr. Sand’s original motion to set the fee at $25 per linear foot for cell towers and wind towers, seconded by Mr. Simonson was returned to the floor.

At this point, the Committee noted that it did not fully understand that Mr. Sands was intending to address both cell and wind towers with one motion. Ms. Vary went on to say that it seemed counter to Mr. Sands argument that cell and wind towers were very different, to then set their fees at the same level. Mr. Sands responded that he felt the higher fee for cell towers would be effective in keeping cell towers out of the County, something he felt his constituents would support. Ms. Vary noted that such an approach could be construed as using a fee for punitive purposes. Mr. Sands disagreed. Mr. Miller noted for the Committee’s information that the County had several years experience administering cell tower permits and that the current $500 per tower level was more than adequate to recover costs. Mr. Steimel noted that he agreed there were vast differences between cell and wind towers. The Committee returned to the motion as last stated.

Mr. Sand’s original motion to set the fee at $25 per linear foot for cell towers and wind towers, seconded by Mr. Simonson, was defeated with three in favor and Mrs. Allen, Mrs. Dubin, Mr. MacMurdo, Mr. Slack, Ms. Vary, and Mr. Steimel opposed.

Mr. MacMurdo moved to set the building permit fee for wind towers at the recommended $550 per tower level, seconded by Mrs. Allen.

Ms. Vary commented that she felt $550 was too low. Mr. Simonson agreed. Mr. MacMurdo suggested that if there is such a level of disagreement on the issue, that perhaps the item should be tabled until such time as the Committee members who have concerns could meet with Mr. Miller and gain a greater understanding of the fee structures that are in play. It was the general consensus of the Committee that the issue should not be tabled.

Ms. Vary made an amended motion to set the building permit fee at $2,000, seconded by Mrs. Dubin.

Mr. MacMurdo reiterated to the Committee that it was his clear understanding that the State’s Attorney that setting arbitrary fee levels without a defensible association to costs incurred was illegal. But to clarify, he asked Mr. Matekaitis if the County was empowered to set fees on actual costs or on actual costs plus speculative and hypothetical "what if’s". Mr. Matekaitis responded that the standard would be one of reasonable action. If the fee were set at $550 and the actual costs, following experience, were $495, the fee would likely seem reasonable. However, if the fee were set in the thousands and the actual costs were in the low hundreds, it would put the County on shakier ground. Mr. Slack commented that this is something of a moot argument if the issue is never challenged in court, as the cell tower issues have not been in the recent past. Mr. Matekaitis responded that he never frames his advice on the premise that the situation is alright "as long as no one sues." If the Board provides thoughtful decisions based on the best information they can receive of the laws of the time, then there are no apologies to be made or explanations given for the actions taken. However, the farther afield the decision is from the advice and information provided, the harder to argue it as reasonable and thoughtful and the more likely explanations may be required. Mr. Slack asked if an industry like the cellular industry paid a fee over a length of time, would that indicate their tacit agreement with the fee and remove or hinder their future ability to argue the fee? Mr. Matekaitis responded that if they paid the fee under protest, that would strongly preserve any future arguments, but in truth a court can always elect to determine a ruling retrospective as well as prospective. There are no guarantees when it goes to a court determination. Ms. Vary commented that she firmly believed there would be expenses that the County cannot foresee at this time and that setting the fee at $1,000 or $2,000 would likely prove close to the actual expenditures and therefore be viewed as reasonable. Mr. Matekaitis asked if the Committee was implying that all building permit fees (which is all that is being discussed) should be revisited and re-examined in the same light as those we are considering here? He noted that Mr. Miller had done a thorough study to produce his recommendation of the fee amount, so it was somewhat difficult to see what additional "unknowns" might justify raising the fee so significantly. He asked if perhaps they were looking at other issues beyond the work of the Planning and Zoning Office, such as the County Engineer’s time or the time of the State’s Attorney’s office to respond to inquiries? Was the Committee recommending that whenever he answer any question related to an active permit, that the time should be charged to that permit? If this was the case, it opened the question of asking about these additional issues on all fees, because it represented a very different way of approaching this than had been done before.

Mr. Lyle asked if it was not true that if the cost of the permit did prove inadequate for covering all the costs, couldn’t the fee be raised? Mr. Miller noted that it could be raised for new permit applications, but not be applied retroactively. Mr. MacMurdo asked if it was not true that FPL would not be required to pay for a building permit because their Special Use was granted. Mr. Miller responded that FPL would be required to pay the building permit fee, regardless of the Special Use determination. Mr. Matekaitis asked Mr. Miller if he was aware of whether FPL would apply for all their permits at one time or if they would do them in smaller segments. Mr. Miller replied that he believed they were to bring them in at two or three at a time. This would allow for a review of the experience and, if needed, for a change in the fee to occur and be applied proactively. Mr. Sands noted that he would support the $2,000 per tower fee. Mr. Simonson commented that given how opposed some citizens were to the project, that he did not believe FPL would dispute a $2,000 per tower fee.

Motion to amend the original motion to $2,000 per wind tower building permit carried with seven members in support and Mrs. Allen and Mr. MacMurdo opposed .

Motion to set the fee for wind tower building permits at $2,000 per wind tower carried with seven members in support and Mrs. Allen and Mr. MacMurdo opposed .

Mr. Steimel noted that the next order of business was to address the issue of adding language to the Code that would clearly allow for the use of consultants and the option to charge those consultant costs back to the applicant. Mr. Miller had provided suggested language to be used.

Ms. Vary moved to adopt the suggested language, seconded by Mrs. Dubin, and the motion carried unanimously.

Mr. Steimel then moved to the next item, related to the discretionary powers of the Planning Director and specifically the Director’s authority to waive certain application requirements. Mr. Miller clarified that it has been the long-standing policy and practice to allow the Director the discretion to add or waive requirements during the zoning application process. However, there was a situation during the FPL wind tower process that raised questions about the practice. The question before the Committee now is whether to codify that authority or not. Mr. Miller had provided language that could be used to place clear authority into the code. Mr. Simonson asked for specific instances that had occurred where this discretion would come into play and whether this included waiving fees. Mr. Miller replied that this had nothing to do with waiver of fees. He noted that the application process outlines a wide range of requirements to fit a number of varying circumstances. Because of this broad scale approach, certain items occasionally are not reasonable or necessary. In the FPL situation, a standard submission requirement of a Natural Resources Inventory Report was determined, after consultation with the Soil and Water Conservation District, to be impractical if not impossible to require. He noted that, again, these are a broad range of requirements and are not intended to be used as unreasonable impediments to applicants. Mrs. Dubin asked if this happens often. Mr. Miller responded that it does not. He noted that another example, similarly, would be the situation of an applicant seeking allowance for a dog kennel. The requirement of a Natural Resources Inventory report in that situation would also be unnecessary. The identification of when items do and do not make sense comes primarily of experience by the staff as they proceed through the processes.

Ms. Vary moved to accept the recommended language granting the Planning Director the authority to waive or add information requirements for zoning applications when appropriate to do so, seconded by Mr. MacMurdo.

Mr. Steimel asked if there were any further discussion. Mr. Sands raised the issue of whether the need for this practice actually indicates a need to review all ordinances with an eye to appropriate documentation being deemed necessary or not. He recommended that the Committee instead discuss a full review of the ordinances to indicate where items should be marked "shall provide" and "may provide". Mr. MacMurdo noted that changing ordinances would amount to the same action as the motion provides. In either case, the determination still falls to the Director. Ms. Vary noted that softening the requirement language may result in greater allowance for discretion than this motion provides. Mr. MacMurdo also noted that at any time, the Committee has the right to over-ride the Director’s decisions, nothing about the motion removes that over-site authority.

The motion to utilize the suggested language to grant the Planning Director clear authority to waive or add information requirements for zoning requirements for zoning applications when appropriate was then returned to the floor for vote. Motion carried with seven members in favor and Mr. Sands and Mr. Simonson opposed.

The final item of the section related to amending the zoning application fees to make the applicant pay the direct costs of notification was discussed. Mr. Miller reported that following consultation with the State’s Attorney’s office, he had prepared an alternate fee schedule for zoning actions. This also allows for a higher staff review fee to be charged to a more complex project than would be to a simpler project. The memorandum prepared by Mr. Miller recommends a three-tiered system where the most complex cases (something on the scale of an FPL project) would be a three, something simpler (like a kennel) would be a level one and there would be an interim level two to be used for items that fall between the two. The applicant would also have thirty calendar days to pay the direct costs for mailings, the Hearing Officer, transcripts if needed and any other outside consultant fees. If the payment is not received, a final determination would not be rendered. Mr. Miller noted that there would also be allowance in the process to add fees for items such as a County Engineer review of grading plans as needed. Ms. Vary asked if this was a simpler process to administer than the current process. Mr. Miller responded that it was actually much more complex. However, Mr. Steimel noted that this approach certainly appears more fair than a flat fee that does not recognize variations in difficulty between projects. Mr. Sands commented that he was still having difficulties understanding the difference between the zoning application fees and the building permit fees.

Mr. MacMurdo moved to accept the revised zoning application fee schedule, seconded by Mrs. Allen, and the motion carried unanimously.

BUILDING CODE AMENDMENTS – Minor amendments to the current County Building Codes, recommended by the Chief Building Inspector.

Mr. Steimel noted that this item has been carried over from past meetings. There were three items in play. The first and second related to clarifying that permits are to be required for fences and sheds. The final item related to a change in the R factor requirement for wall insulation. The Committee had requested a cost comparison between staying with the current R-13 or moving to a higher R-20 energy performance standard. Mr. Petrie, the Chief Building Inspector, provided the requested information. Mr. Petrie then reviewed the report with the Committee. Mr. Steimel commented that the proposal submitted did keep the County in line with surrounding jurisdictions. Mr. Taylor, County Building Inspector, made additional comments supporting the approach that the County stay in line with the requirements of the surrounding communities.

Mrs. Allen moved to accept the recommendations, as presented in full, to the County Building Code, seconded by Ms. Vary. Motion carried with eight in favor and Mr. MacMurdo opposed.

DISCUSSION ITEM – Requirements and regulations for placing utilities in public roads.

Mr. Steimel opened the discussions with the comment that he had been discussing this issue with Mr. Lorence of the County Highway Department. As residential developments increase, there are a great many utility cables going into road right of ways. The preferred approach of the utility companies is to plow the cables into the ground rather than trenching them. This can cause unseen damage to drain tiles. This damage can cause very problematic flooding issues. Mr. Steimel has been investigating whether the County can require utility companies to trench the cables in and also to notify property owners when this is occurring. Mr. Steimel then charged Mr. Miller to work with Mr. Lorence on this issue and to bring a report to the Committee at a future meeting.

Ms. Vary moved to adjourn, seconded by Mr. Lyle, and the motion carried unanimously.

Respectfully submitted,

_______________________________________
Roger Steimel, Chairman
Planning and Regulations Committee Chairman

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