Description Gallatin County / Bozeman Area ("Donut") Zoning District Board of Adjustment May 15, 2007
Date 05/15/2007 Location Board of Adjustment
Time Speaker Note
6:00:08 PM Chairman Shirley Nash Called to Order. Roll Call. Board Members Present were: Shirley Nash, Jason Armstrong, Ralph Miller, Gus Pfaehler, Al Lien. Staff Present were: Planning Director Greg Sullivan, Code Compliance Specialist Amy Waring, Deputy County Attorney Kate Dinwiddie and Recording Secretary Crystal Turner.
6:00:25 PM There was no public comment on any matters within the Board's jurisdiction that was not on the agenda.
6:00:38 PM Chairman Shirley Nash Can I have a motion to approve the minutes from the last meeting?
6:00:42 PM Ralph Miller So moved.
6:00:46 PM Gus Pfaehler Second
6:00:50 PM Motion passed unanimously.
6:01:01 PM Chairman Shirley Nash Duffy Appeal of 9/21/06 Code Compliance Specialist Decision
6:01:40 PM Code Compliance Specialist Amy Waring Staff report. Noted for the record that the slide presentation she would show are pictures that are from the staff report. Extra staff reports are available on the back table. Read into record a letter from Luke Rainey (former employee of the Duffy business), received 5/14/07.
6:29:51 PM Deputy County Attorney Kate Dinwiddie Swore into oath the members of the audience that have signed up to speak tonight.
6:30:34 PM Susan Swimley, Attorney Presentation on behalf of the Duffy Family (appellants).
6:43:41 PM Kelly Sironi, Attorney Presentation on behalf of the Duffy Family (appellants).
6:55:23 PM Board questions and discussion with Kelly Sironi regarding the Russell case heard both by District and Supreme Courts.
7:00:07 PM Mark Duffy Appellant presentation
7:22:53 PM Board questions and discussion with Mark Duffy regarding number of employees. Discussion moved to helicopters, landing and take-offs from the property.
7:34:22 PM Deputy County Attorney Kate Dinwiddie Advice and clarification.
7:34:33 PM Continued questions and discussion with Mark Duffy regarding time frame of the "non-conforming use." Discussion on transportation of drills during the 1999 time frame.
7:40:14 PM Steve Duffy Appellant presentation
7:44:10 PM Board questions and discussion with Steve Duffy regarding moving helicopters.
7:45:18 PM Tom Duffy Appellant presentation
7:48:55 PM Recess.
7:56:44 PM Chairman Shirley Reconvened the meeting.
7:56:45 PM Public Comment G. August Uhl
8:04:25 PM Deputy County Attorney Kate Dinwiddie Clarification regarding if Mr. Uhl would like the 13 pictures entered into the record as an exhibit. Mr. Uhl replied yes, and they were then labeled Exhibit H.
8:05:01 PM Board questions with G. August Uhl regarding contacting the Department of Environmental Quality (DEQ) or the Environmental Protection Agency (EPA) regarding power washing of oils/lubricants and burning in barrels.
8:08:31 PM Continued Public Comment Dale Curtis, who also read a letter from Robert & Sherry Schaefer (submitted 1 picture of gazebo from 1998 labeled Exhibit I), Sherry Schaefer.
8:20:06 PM Deputy County Attorney Kate Dinwiddie Noted the issue with any groundwater contamination is not an issue for this Board to determine, and that DEQ has already been notified.
8:20:27 PM Continued Public Comment Dale Curtis finished, Walter Rivers (submitted 3 photos labeled Exhibit J), who also read a letter from Ann Marie McGraff, George Renner (submitted 12 pictures labeled Exhibit K and a letter from the Franklin Hills Homeowners' Association sent to Jennifer Madgic (Planning Director in 2004) dated 2/14/2004 labeled Exhibit L; letter from Mark Mahnke, Montana Department of Public Health and Human Services dated 4/23/2007 labeled Exhibit M), Joan Holborn, Richard Holborn, Jim Hamilton, Murry Steinman, Tommi Hageman, Buzz Tarlow, Amy Waring read letter into record, dated 5/4/2007 from Pat A. Yamsey.
9:19:50 PM Chairman Shirley Nash Closed public testimony.
9:20:04 PM Ralph Miller asks when the Board has the opportunity to ask the appellant questions.
9:20:20 PM Deputy County Attorney Kate Dinwiddie Advice regarding process of meeting.
9:21:17 PM Mark Duffy Appellant rebuttal
9:25:34 PM Board questions for clarification if the Duffy's were using pressure washers to clean drills during the 1999 time frame. Discussion with Amy Waring. Kate Dinwiddie interjected the discussion was turning towards "Board Discussion." Mark Duffy continued rebuttal.
9:32:47 PM Kelly Sironi, Attorney Rebuttal on behalf of appellant, the Duffy Family.
9:40:25 PM Susan Swimley, Attorney Rebuttal on behalf of appellant, the Duffy Family.
9:42:10 PM Chairman Shirley Nash Closed rebuttal
9:42:18 PM Deputy County Attorney Kate Dinwiddie Gave Board the option to continue the Board Discussion segment of this hearing to a later date, if they'd like to use more time to review all the information and testimony presented tonight.
9:43:32 PM Board decided they wanted to continue on with the hearing tonight. Board questions and discussion with Mark Duffy regarding his business income. Al Lien asked how often helicopters fly in. Jason Armstrong reminded the Board that the helicopters on the property is not being disputed. Shirley Nash asked if Steve Duffy was a partner in 1999. Ralph Miller mentioned the pictures shown tonight and their time frame appear to show the business has had more activity in recent years. Discussion between Ralph Miller, Mark Duffy and Kelly Sironi regarding public testimony. Gus Pfaehler noted the pictures could be argued as those of opportunity. Discussion with Mark Duffy regarding the barrels in the pictures. Gus Pfaehler feels the operation is basically the same as it was around 1999. Feels the cease and desist order should be
revoked.
10:18:58 PM Deputy County Attorney Kate Dinwiddie Clarification and advice regarding process of hearing.
10:20:04 PM Board discussion regarding what, "at that time of zoning," means based on the Supreme Court's decision of the Russell case. Gus Pfaehler asked what the business' daily performance was in 1999. Steve Duffy attempted to answer the question of what the business was doing in July of 1999. (For the record Buzz Tarlow, on behalf of the Franklin Hills HOA, objects to the questioning and discussion between the Board and the appellant.)
10:33:31 PM Deputy County Attorney Kate Dinwiddie Clarified the Board needs to make a motion to either affirm, modify or reverse Amy Waring's decision.
10:33:57 PM Jason Armstrong I move that the Board affirm the decision [of the Code Compliance Specialist].
10:34:06 PM Ralph Miller Second
10:34:11 PM Board discussion. Clarification from Kate Dinwiddie, requests the Board put findings for their motion on the record. Amy Waring clarified her findings in the staff report
10:35:28 PM Jason Armstrong adopts and incorporate's Amy Waring's staff report. Finding in regards to Section 50.160A, that direct testimony by the Duffy's indicate the use of Excel Drilling expanded from 1999 until now. Regarding Section 50.160I, I don't think the Duffy's have taken the opportunity to apply for a Conditional Use Permit that may allow their current use under the zoning. Regarding MCA 76-2-208 helicopters are a non issue in this case. Disagrees with the statement earlier that this is a sort of "witch hunt." Finds the use has expanded since 1998 according to the appellant's testimony that six drills were on site, paint removed, pressure sprayers around in 1999. Once Excel Drilling perfected the design of their drill, manufacturing grew earnest until they had 12 drills. Direct testimony stated by the
Duffy's that this was a business made to grow. Finding that Excel Drilling expanded from storing six drills no longer in use by Excel to manufacture a different kind of drill. Tommi's [Hageman] tesimony in designing, manufacturing and repairing the HP400; they are trying to piggy-back their corporation onto the citizens of Gallatin County. I find there is substantially more use of property for preparing, testing, transporting, modifying that exist today that did not exist 1998 and 1999. Current use is not a pre-existing nonconforming use. Find Excel Drilling activity directly violates the intent of 10.010. Find that this law is not a technicality, that the date of July 1999 is no more a technicality than anyone's fifth amendment right. Clarification from counsel. Shirley Nash agrees with those findings. Ralph Miller agrees with the findings. Al Lien is not going to support the motion. Does not feel it is a heavy industry. Research and development is something that just happens in
this kind of work. Helicopters have been a common denominator since they bought the property. Not convinced that it is really that noisy. Gus Pfaehler will not support the motion.
10:45:45 PM Motion passed 3:2. Gus Pfaehler and Al Lien opposed.
10:46:15 PM Deputy County Attorney Kate Dinwiddie Being that this is the first meeting of the year, the Board needs to nominate and vote on a Chair and Vice-Chair .
10:46:36 PM Jason Armstrong I nominate Shirley for the Chair.
10:46:40 PM Shirley Nash Accepts nomination.
10:46:54 PM Motion passed 4:1. Gus Pfaehler opposed.
10:47:02 PM Gus Pfaehler Stated the Board was not giving him a turn to speak and that the Board used to be much better.
10:47:07 PM Deputy County Attorney Kate Dinwiddie Vice Chair
10:47:14 PM Chairman Shirley Nash I nominate Jason.
10:47:15 PM Jason Armstrong I nominate Gus.
10:47:16 PM Gus Pfaehler I decline.
10:47:24 PM Jason Armstrong I decline.
10:47:26 PM Kate Dinwiddie asked if Ralph would be interested in the Vice-Chairmanship. Ralph said it should be passed around, he's already served his limit as chair.
10:47:52 PM Jason Armstrong I will be the Vice-Chair.
10:47:55 PM Motion passed unanimously.
10:48:05 PM Meeting adjourned.
| 
