(Published in the Miami County Republic Wed. 10/09/19)
RESOLUTION NO. R19-09-026
A RESOLUTION MODIFYING CONDITIONAL USE
PERMIT #Z-180-CUP Vitale Properties, LLC
WHEREAS, the Miami County Planning Commission did hold a public hearing on March 5, 2019, in accordance with the requirements as set forth in Article 22 of the Miami County, Kansas Zoning Regulations to consider revocation or modification of Conditional Use Permit #Z-180 (Vitale Properties, LLC) for a contractor’s shop and storage yard in accordance of Section 14-3 of the Miami County, Kansas Zoning Regulations, on the real property described in Section 1 below; and
WHEREAS, after reviewing all written and oral testimony presented at said hearing, the Planning Commission voted 5 in favor and 1 opposed (5-1) to recommend that the Board of County Commissioners revoke Conditional Use Permit #Z-180 based on the finding listed below, with an additional motion approved unanimously (6-0) to allow 18-months for Vitale Properties, LLC to remove the business use from the property; stipulate that the use not be expanded between now and when the business use is vacated in 18 months; and to limit the business hours from 7 am to 6 pm:
Planning Commission Finding:
1. That aerial and ground photography clearly show that the conditional use permit has substantially expanded from its original use in 1991, and testimony received indicates the previous use included a dump truck, a road grader, a scraper, and a bulldozer. The current use includes daily deliveries of equipment and materials by UPS and other trucks multiple times a day which also degrade the road. In addition, testimony received confirms that the barn constructed in 2005 was used to work on and store tractors and was never used for the storage and maintenance of construction equipment which it is now being used for, but was never the intended use of the structure.
WHERAS, a valid protest petition was filed in the Office of the County Clerk within 14 days after the close of the public hearing before the Planning Commission; and
WHEREAS, the Board of County Commissioners has reviewed the conditional use permit request along with the recommendations of the Planning Commission, including the Planning Commission Minutes, all oral and written testimony, and additional oral and written testimony received at their meeting on March 27, 2019, and finds that the testimony presented is conflicting and the evidence is inconclusive as to the exact size and intensity of the use that existed in 1991, and therefore the County Commission found it difficult to determine that the use has substantially expanded and moved to overturn the recommendation of the Planning Commission to revoke the conditional use permit, and instead voted unanimously (5-0) to modify the conditional use permit by creating conditions for the operation, and asked staff to work with Vitale Properties, LLC and return to the Commission in 2 weeks with a list of conditions to consider; and
WHEREAS, staff met with representatives of Vitale Properties, LLC, including their legal counsel to outline reasonable conditions to apply to the existing conditional use permit identified as Z-180, and staff also requested an updated site plan and stormwater analysis be prepared; and
WHEREAS, due to unforeseen circumstances it took much longer than 2 weeks to obtain an updated site plan and stormwater analysis and return recommended conditions to the County Commission for review; and
WHEREAS, staff and representatives of Vitale Properties, LLC, discussed the proposed conditions with the County Commission at their Study Session on August 28, 2019, and the Commissioners asked that certain conditions be amended which the Vitale Properties representatives agreed to, which are listed in Section 2 for the use on the property identified in Section 1.
IT IS HEREBY RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MIAMI COUNTY, KANSAS that they hereby overturn the decision of the Planning Commission to revoke the conditional use permit identified as Z-180-CUP, and instead modify Z-180-CUP based on the findings and subject to the conditions listed in Section 2 below.
All that part of the South Half of the Northeast Quarter of the Northeast Quarter of Section 31, Township 15 South, Range 23 East, Miami County, Kansas, described as follows:
Commencing at the Northeast corner of the Northeast Quarter of said Section 31; thence S2°12’48”E, along the East line of said Northeast Quarter, a distance of 667.67 feet, to the Northeast corner of the South Half of the Northeast Quarter of the Northeast Quarter of said Section 31, said point also being the Point of Beginning; thence S2°12'48”E, along the East line of said Northeast Quarter, a distance of 417.66 feet; thence S87°42'35”W, parallel to the South line of the Northeast Quarter of the Northeast Quarter of said Section 31, a distance of 977.24 feet; thence S8°27’57"E, a distance of 251.46 feet, to a point on the South line of the Northeast Quarter of the Northeast Quarter of said Section 31; thence S87°42'35"W, along said South line, a distance of 373.18 feet, to the Southwest corner of the Northeast Quarter of the Northeast Quarter of said Section 31; thence N2°16’50”W, a distance of 666.20 feet, to the Northwest corner of the South half of the Northeast Quarter of the Northeast Quarter of said Section 31; thence N87°38'47” E, a distance of 1,323.82 feet, to the Point of Beginning. Subject to any part thereof in roads.
1. The evidence presented is inconclusive that the use has substantially expanded from the use in 1991.
2. The testimony presented was contradictory which made it difficult to determine the facts.
3. Modifying the existing use by applying conditions will help reduce negative impacts to the surrounding area while protecting the vested rights of the property owner.
1. Except as amended by these conditions, the property shall be developed according to the site plan, attached hereto as Exhibit A, including construction of a 75’x43’ building and 400’x100’ building for storage and maintenance of equipment.
2. Building permits shall be obtained for new structures and comply with all Zoning and Building Codes. Existing buildings being utilized for the business will require a code footprint and compliance with building codes.
3. A review for consideration of renewal of this conditional use permit shall be in ten years commencing from the date of County Commission approval. Change of ownership or subleasing of the property/facilities shall require review by the planning commission to ensure the use substantially complies with the terms of this resolution.
4. No large / heavy construction equipment shall be stored outside, excluding 2-3 semi-truck trailers or cargo containers used to store concrete blankets, etc. Outdoor storage of equipment shall be limited to small construction equipment, such as ride-on trowels and skid steers, on the gravel parking area located directly west of the existing shed. Outdoor storage of equipment shall be fully screened from surrounding properties.
5. Normal hours of operation shall be from 6:00 a.m. to 6:00 p.m., Monday through Saturday, excluding legal holidays. No company deliveries shall be made after the close of business each day. This does not include package deliveries, i.e. UPS, USPS, etc., which the landowner has no control over.
6. Washing of trucks, commercial vehicles and equipment shall require compliance with KDHE regulations for Storm Water Management and Mud Trap Waste Disposal. Proper and current permits shall be presented to County personnel upon request.
7. Within 60 days of County Commission approval the applicant shall obtain a commercial entrance permit.
8. The applicant shall establish a route of travel for all business related vehicles and shall be responsible for annual dust control along said route from the subject property driveway to the paved road (currently approximately 3200 feet). If traffic counts from this use exceed 300 trips per day, the applicant shall be responsible for upgrading the road to asphalt in compliance with County road standards.
9. Noise shall be limited to 70db at the property line.
10. Lighting shall be arranged, located or screened to direct light away from adjoining or abutting properties, shall utilize a fixture that directs light downward and prevents light from traveling out above a horizontal plane relative to the bulb; overall lighting shall not exceed 0.5 lumens per square foot; and light color shall not exceed 3000 degree kelvin. A lighting plan may be required prior to installing lighting.
The provisions in this resolution will become effective upon the adoption by the Board of County Commissioners and publication of the adopting resolution in the Official County newspaper. Upon this Resolution becoming effective, all prior resolutions affecting the above-described tract of land are repealed. All zoning Regulations of Miami County, Kansas affecting the use of the real property heretofore described, which are inconsistent with this resolution are hereby made inapplicable to said property until the Conditional Use Permit is vacated or is declared null and void.
ADOPTED ON THIS 18th DAY OF SEPTEMBER, 2019.
BOARD OF COUNTY COMMISSIONERS, MIAMI COUNTY, KANSAS
PHIL DIXON, Chairman
BONNIE “ROB” ROBERTS, Chairman Pro-tem
TYLER VAUGHAN, Commissioner
GEORGE PRETZ, Commissioner
DANIEL GALLAGHER, Commissioner
JANET WHITE, County Clerk
Approved as to form and legality on September 18, 2019 by David Heger.