Elko County Board of Commissioners
Commissioners
Sheri Eklund-Brown
John Ellison
Charlie Myers
Mike Nannini
Warren Russell
Elko County Manager
Robert K. Stokes
STATE OF NEVADA, )
COUNTY OF ELKO. ) ss.
MARCH 6, 2008
The Board of Elko County Commissioners met on Thursday, March 6, 2008 at 1:30
p.m., in Room 105 of the Elko County Courthouse at 571 Idaho Street, Elko,
Nevada.
There were present: County Commissioners
Mike Nannini, Chair
John Ellison
Charlie Myers
Sheri Eklund-Brown
Warren Russell
Elko Co. Manager
Robert Stokes
CFO/Asst. Manager
Cash Minor
Deputy District Attorney
Kristin McQueary
Deputy County Clerk
Marilyn Tipton
Library Director
Jeanette Hammons
Road Supervisor
Otis Tipton
Public Works Director
Lynn Forsberg
Planning & Zoning Dept.
Randy Brown
Juvenile Probation Dept.
Michael Pedersen
--The proceedings were as follows:
CALL TO ORDER:
Chairman Nannini called the meeting to order at 1:30 p.m.
PLEDGE OF ALLEGIANCE:
Commissioner Eklund-Brown led the meeting participants in the Pledge of
Allegiance.
I. COMMENTS BY THE GENERAL PUBLIC:
Carl Diekhans, Elko Lions Club President, presented a check of $2,500 to the
Wells City Mayor for their Earthquake Fund. Mr. Diekhans introduced the Elko Lions
Club members present: D. Ray Gardner, Terry Hritz, C.C. Swafford, Gary
Cummings, Don Newman, and Danny Benson.
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Commissioner Nannini noted that D. Ray Gardner had offered use of his motor
home to folks that may not have a place to stay.
Rusty Tybo thanked the Elko Lions Club for their generous donation. He
stated it was the support and spirit of individuals like this that help the City of Wells
get through the recovery process.
Gerald Miller, Northeastern Nevada Stewardship Group, stated that they
supported the formation of the Natural Resource Advisory Committee and the
appointment of a Natural Resource Director.
Leta Collord inquired if the Public Lands Policy Plan had been finished.
Commissioner Eklund-Brown replied that it was still in draft with PLUAC and would
soon be released. Leta Collord inquired if would become public soon and received
an affirmative response.
II.
CERTIFICATE OF APPRECIATION:
Elko County Public Lands Use Advisory Commission (PLUAC):
Discussion and consideration of approval of Certificate of Appreciation to
Don Decker for his many years of dedicated service on PLUAC, and all other
matters related, thereto.
MOTION: Commissioner Ellison moved to approve a Certificate of
Appreciation to Don Decker. Commissioner Myers seconded
the motion. The motion was passed unanimously.
III.
WELLS, NEVADA EARTHQUAKE DISASTER:
A.
Discussion and consideration of issues and actions related to the
response and recovery from the damage and disruption caused to Wells, Nevada
and surrounding areas by the earthquake event on February 21, 2008 along with the
numerous aftershocks and all other matters related, thereto.
The Commission
may consider additional actions and possible funding considerations related to the
response to this major natural disaster event.
Commissioner Nannini noted that Wells did not qualify for FEMA funding. He
reported that the City and the School District did have earthquake insurance up to
one million dollars in damage but that insurance had stipulations. Commissioner
Nannini commented that their High School students were using the Grammar
School. He stated there was an LDS group of skilled professionals which were
helping the elderly repair their homes. Commissioner Nannini noted that they would
have to help themselves. He commented upon the response received throughout
the county and the state.
Commissioner Ellison noted the response from the congressional staff in
Washington D.C. who expressed their sorrow. He stated that Senator Reid would
look at some portable units for the High School students.
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Rusty Tybo, Wells City Mayor, thanked the Board on behalf of the community
of Wells for their assistance and considerations made for the City of Wells. He
stated they were finalizing the analysis process and identifying the challenges
ahead. Rusty Tybo reported that the last remaining business was in operation
yesterday. He stated there was a Wells, Nevada Earthquake Fund established at
the Nevada State Bank and commented upon the generous public response.
Commissioner Eklund-Brown inquired about the monitoring of the funds. Rusty
Tybo reported that a committee would oversee the distribution of those funds and
the guidelines had been overseen by their legal council. He stated the committee
consisted of church pastors from various denominations and the City of Wells was
represented by Henry James from Wells Rural Electric. Rusty Tybo stated the
committee would review the claims submitted by residents and commercial, then a
contractor would do the assessment of costs and submit the scope and costs for the
work. The committee will be billed directly by the contractor. Rusty Tybo stated Mr.
James would meet with the City Council and keep them updated on their progress.
Commissioner Eklund-Brown inquired if public funds would be going into those
accounts. Rusty Tybo replied none of the donations would go toward public
buildings. Commissioner Eklund-Brown inquired about the damage to the public
buildings. Mr. Tybo stated an insurance team of engineers were making an analysis
and final recommendations to the City and the insurance company. Commissioner
Eklund-Brown inquired if there was a deductible on the insurance. Rusty Tybo
replied $5,000.00 dollars was the deductible on the insurance. Commissioner Myers
inquired how much the City would have to come up with after the insurance
payment. Rusty Tybo reported they would meet with the insurance company to get
an idea of the payment fees.
Commissioner Ellison believed the congressional delegates would help them
obtain some funding from other agencies. Rusty Tybo noted that Congressman
Heller’s office and Senator Reid’s office had contacted them and they would apply
for assistance through a special appropriation process. Rusty Tybo stated they
worked on the application for two days to meet the application deadlines. Rusty
Tybo noted the quake happened two weeks from today and he was constantly on
the phone with people from outside of the area who were concerned.
Commissioner Ellison inquired about the rescue of the historical buildings.
Rusty Tybo stated most of those buildings were owned by four separate owners. He
reported the City had secured the area with a fence to maintain the public’s safety.
Rusty Tybo stated the City had discussions with the private property owners who
had to make difficult decisions. He hoped they can form a plan to help resolve this
issue.
Commissioner Myers noted that in the middle of the disaster a few stepped up
to the plate to help and he thanked the County departments and their staff who were
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out there helping. Commissioner Nannini commended Rusty Tybo and his City
Manager for taking control of the situation and easing the citizen’s stress.
MOTION: Commissioner Myers moved that the Elko County
Commission establish an Elko County Recovery Assistance
Fund not to exceed $100,000 out of contingency for the City of
Wells for the City government to draw on as they need for
their governmental needs. Commissioner Russell seconded
the motion.
Rusty Tybo noted that people left their families to come to their area to help
them. He commented upon the response and compassion they had received.
Commissioner Ellison stated that his father had passed away but the
Commissioners kept him informed and there were Commissioners physically at the
site. Commissioner Nannini reported that Assemblyman Carpenter was present
also. Rusty Tybo informed them that on April 5th they would hold a rally.
The motion was passed unanimously.
Commissioner Nannini commended John Legarza for always stepping up to
the plate when there was a major event. John Legarza stated he and his employees
donated $10,000 to Wells for the rebuilding and were challenging other contractors,
mining or construction, to match that contribution. He stated there were a lot of good
contractors and felt it was their obligation to pitch in and help their neighbors.
Commissioner Russell commended the County staff for jumping in and
helping. He stated they would continue to support them. Commissioner EklundBrown noted that Robert Stokes was there constantly. She thanked county staff and
noted that several agencies, residents, and business people had lent aid.
Commissioner Myers suggested that names be submitted for recognition and
recommended that the County do a plaque.
Commissioner Nannini asked that Rusty Tybo and Assemblyman Carpenter
explain their meeting. Assemblyman Carpenter stated they would hold a rally on the
5th of April to help the residents of Wells, called the Wells Earthquake Recovery.
They hoped to raise $500,000. Assemblyman Carpenter noted the funding would be
used to get the residential homes in the shape they were, before the earthquake. He
stated if there was funding left over; they would apply it to the businesses. He
believed there were two homes damaged beyond repair. Assemblyman Carpenter
asked the ranchers to donate calves for an auction. He hoped to get the businesses
in Twin Falls involved in the cattle sale. He stated the Elko Chamber of Commerce
had been helping. Assemblyman John Carpenter noted there would be no activity at
the historical section until they met with the property owners.
Rusty Tybo thanked the people who organized the rally and brought the
concept forward. He noted Assemblyman Carpenter, Commissioner Nannini had
volunteered and Grant Gerber had offered his services to give free legal advice. He
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stated Hank James from Wells Rural Electric was helping to put the program
together and had sent all the alumni letters seeking financial support for the
community. Commissioner Nannini stated they would solicit all the businesses and
Michele Petty from the County was working with Hank James. Commissioner Ellison
asked where they would hold the rally. Commissioner Nannini replied on Front
Street and it would start out at 10:00 a.m. They would have the Road Hard Band to
play. Commissioner Ellison noted that Senator John Porter would come from
Washington D.C. to play keyboard at the rally. Commissioner Nannini noted that
Grant Gerber was raised in Wells and volunteered to help.
Commissioner Eklund-Brown noted that Rich Harvey was there immediately
and took over incident command. Dale Lotspeich explained that Rich Harvey was
part of the contingent from Reno that Tom Turk brought over to Wells. He noted the
police and fire worked together with no arguments through the event and worked as
a team. Dale Lotspeich stated the Commission would have a formal report by the 1st
of May upon what took place together with recommendations for Elko County during
the next disturbance. Dale Lotspeich reported that Allen Case and Lt. Morton from
the Sheriff’s Office took over the command of the Type III team for the recovery
efforts.
He stated it was now transitioned to Jolene Supp and her staff.
Commissioner Eklund-Brown inquired if this transitioned through the LEPC board so
that they could streamline the process. Dale Lotspeich noted they had discussed
that with Bill Webb to have everything in place. He noted the logistical component
was in place with the interagency dispatch. He stated communications among all
the agencies was difficult for the first two hours. He stated that NDOT did the patch
between 800 MHz and VHF so everyone could talk on the same channel. Dale
Lotspeich would make future recommendations to enhance the communications.
Jolene Supp noted that NDOT personnel were there checking the bridges and
highways. She stated their engineers also helped inspect the City and County
structures. Jolene Supp stated that Scott Egbert had worked endlessly and had
coordinated the 300 volunteers on Saturday. She displayed a list of the aftershocks
and commented upon the numerous tremors. She noted that yesterday they had 10
aftershocks and they continue to shake. Jolene Supp noted the insurance company
was moving as fast as they could. She cautioned the frost was not out of the ground
yet and USDA felt there would be more underground issues. She noted the
modeling showed sufficient intensity to the ground to provide movement enough to
liquefy the ground. She commented upon the Wells roads and streets that were
buckling. Jolene Supp noted 911 and the Sheriff were her first calls. She reported
that they had ruptured a large water main and their public works staff was
addressing that. She stated the City of Wells did not have underground insurance
coverage. She noted there would be a lot of expenses from underground activity but
they would not know the extent of the damages until the frost was out of the ground.
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Jolene Supp stated the City of West Wendover had offered a crew to help with the
replacement of that water main, and the Cities of Elko, and Carlin offered their
assistance. Jolene Supp noted the water tanks were not assessed and the large
tank had a bulge in the bottom. She stated the tank at the industrial site was not
plumb. She noted the insurance company would submit a report by Thursday.
Commissioner Eklund-Brown inquired if they would build flexibility into the lines
because of the continuing aftershocks. Jolene Supp noted plastic pipe would take
movement and in 1989 they put in some new lines. She noted they lost water from
6:15 a.m. to 10:30 a.m. through the breaks. She stated at 4:00 p.m. another tremor
hit and they experienced another break in the line. Commissioner Eklund-Brown
inquired about the other lines and cautioned the continuing aftershocks may
continue to damage them. Jolene Supp noted that they still had heavy frosts so they
did not know at this time.
Jolene Supp noted that the committee was gathering information from property
owners. She stated governmental agencies were offering loans. Commissioner
Eklund-Brown inquired about Gene Kaplan who had historical buildings. Jolene
Supp reported that they suffered a terrible loss. She noted that the Kaplans put in
an application. Commissioner Nannini stated the committee was concerned about
the Kaplans because they moved from San Francisco and put their life savings into
those historical buildings. Jolene Supp noted that brick and mortar buildings did not
withstand the quake. She stated at the school the quake fragmented the
cinderblock. She had talked to USDA about getting mobile units for the School
District. Commissioner Ellison noted that Senator Reid assured him they would get
on this situation. Jolene Supp noted that the High School students were using their
backpacks for their lockers and holding spring sports at the airport. She noted they
were walking long distances to get to classes. Jolene Supp noted they did an
asbestos testing throughout the buildings and they did not reach the level in the
City’s buildings. Commissioner Eklund-Brown commented there were trailers behind
the Junior High Building that could be utilized. Jolene Supp thanked them for their
support.
B.
Presentation by Dr. Craig M. dePolo, Nevada Bureau of Mines and
Geology, UNR Mackay School of Earth Sciences and Engineering, regarding the
Wells, Nevada Area Earthquake Event and Earthquake Hazard Characterization and
all other matters related, thereto.
Dr. Craig M. dePolo gave a power point presentation and submitted
documentation regarding earthquakes. He reviewed the cause of the faults and the
beginning at the epicenter. He commented upon the various magnitudes of
earthquakes and displayed pictures of the Dixie Valley earthquake in 1954. Dr.
dePolo gave an overview of the previous quakes and faults found in Nevada and
displayed a map of the quaternary faults in Nevada. He reviewed all the aftershocks
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in the Wells area. Dr. Craig dePolo commented upon the number of seismometers
in the field the day after the Wells earthquake. He stated they had a good network
monitoring the aftershocks. Commissioner Ellison asked if he felt there would be a
larger quake. Dr. Craig dePolo stated he would need more specific information to
base a conclusion upon. He commented that typically the edge of the rupture would
have stress and it was being relieved by aftershocks.
Dr. Craig dePolo reviewed the studies from Dreger and Ford at the University
College of Berkeley. He noted they were predicting from seismometers and a
computer. He explained the stress from the epicenter. He stated they would take a
satellite image of the area so they could tell whether it was a dip-slip earthquake. He
reported there was a five mile crack that ruptured four inches. He commented that
heat waves would go out before the ruptures. Dr. dePolo stated that the pulses did a
lot of the damage in Wells. He noted they may be able to determine the direction of
the slip by the direction the woodshop equipment slid and the force of the
earthquake. He felt that if it had occurred during the midday or evening there would
have been more fatalities. Commissioners Russell and Nannini commented upon
hearing the rumbles and noise. Commissioner Ellison inquired how far the
earthquake was felt. Dr. Craig dePolo stated it was measured around the world. Dr.
dePolo stated the Wells earthquake was at a 5.8 magnitude with over 100
aftershocks. He stated the epicenter was northeast of Wells near the fault located
northeast of Wells and dips to the southeast. Dr. dePolo stated that there was
approximately seventy-seven inches of offset. Dr. Craig dePolo stated they did not
know the depth of the main shock, the distribution of the aftershocks or the surface
breakage. He noted they would try to generate a computer model and track the
changes in stress. He stated the earthquake stressed other places and they would
check the Ruby Mountain faults to see if there was an effect upon them. Dr. dePolo
stated that they have not monitored the earthquakes in the region before. He asked
that the federal government leave in their mobile units in to continue monitoring the
earthquakes. He noted there was a 10% to 20% chance of having an earthquake in
Elko. He commented that they understood there was an earthquake hazard up by
Wells. Commissioner Nannini questioned how the earthquake came from the north
but most of the damage was to the south of Wells. Dr. dePolo stated USGS had
regional units and they reviewed their measurements. Dr. Craig dePolo stated they
have a window of opportunity to get prepared for earthquakes. Commissioner
Nannini inquired if Dr. Craig dePolo could come back after further study.
Commissioner Myers noted that he had commented there was an offset that
was 27 inches. Dr. Craig dePolo explained that the 27 inches had the most offset.
He stated they would take a satellite image for more information.
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Dr. Craig dePolo commented that they could go to the website nbmg@unr.edu
under the Nevada Bureau of Mines and Geology for more Wells earthquake
information.
Commissioner Ellison commented upon sidewalks buckling. Dr. dePolo noted
the long shaking that occurred in Elko could lead to the liquid faction which might
have caused sidewalks to crack.
Commissioner Myers noted in the Stockmen’s they had stress cracks in their
frame on the basement walls. He had new cracks in his driveway.
Chairman Nannini called a recess at 12:46 p.m. and reconvened the meeting
at 1:19 p.m.
IV.
MEDICAL SERVICES FACILITY (OLD ELKO CLINIC):
Discussion and consideration of issues related to the lease of this facility from
Northeastern Nevada Regional Hospital including ongoing professional building
assessment services actions and the potential impacts to the existing medical,
dental and VA clinics and future clinics slated to be housed in this facility and all
other matters related, thereto.
Commissioner Nannini stated he was waiting for a phone call from Michael
Clark, with the main office of the Hospital. He stated they were trying to draft an
Agreement of a long lease with the title of the clinic going to the County at the end of
the lease.
V.
CENTRAL NEVADA REGIONAL WATER AUTHORITY (CNRWA):
Discussion and consideration of a proposed resolution to regulate growth in an
entity by stating that each entity’s land use plan must be based upon sustainable
water resources within its County or allow for the acquisition of water resources
outside the county boundaries if the voters approve such a measure to be included
in the land use plan and all other matters related, thereto.
Commissioner Nannini stated they would table this matter because they had
just received the material for review. He asked that it be put upon the next meeting
agenda.
VI. ELKO COUNTY WATER RESOURCE ISSUES:
Discussion and consideration of water resource management and water rights
issues that may impact Elko County including possible discussion related to the
Southern Nevada Water Authority pipeline project and the Central Nevada Regional
Water Authority activities and issues.
There was no discussion held on this agenda item.
VII.
BOARD OF COUNTY HIGHWAY COMMISSIONERS:
Highway Chairman Myers called the Highway Board to order at 1:20 p.m. and
closed the Highway meeting at 1:31 p.m.
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VIII. NATURAL RESOURCES COMMISSION PROPOSAL:
Discussion and consideration of the proposal to establish an Elko County
Natural Resources Advisory Commission that would combine natural resources
related Boards such as PLUAC and Water Planning and all other matters related,
thereto.
Commissioner Russell asked that this item be tabled.
MOTION: Commissioner Ellison moved to table this agenda item.
Commissioner Myers seconded the motion. The motion
was passed unanimously.
IX.
METROPOLIS IRRIGATION RESTORATION PROJECT:
Update report on the Metropolis Irrigation Restoration Project that will make
improvements to Metropolis Irrigation District structures including the Bishop Creek
Dam and a new Recreation Facility consisting of road access, campsites, picnic
tables and a dock on the Bishop Creek Reservoir.
Commissioner Nannini noted that they would need some monies for mitigation
on the EIS. He stated all the parties had signed off on the project. Commissioner
Russell inquired if there was any earthquake damage. Commissioner Nannini stated
the State of Nevada sent some people to review the area.
Commissioner Nannini noted the water temperature at 12 Mile Springs
averaged to from 92.5 degrees to 95 degrees normally but it was up to 120 degrees
now after the earthquake.
X.
ELKO COUNTY DISTRICT ATTORNEY OFFICE:
A.
South Canyon Legal Case - Appeal Hearing Report:
Discussion and update regarding the February 27, 2008 hearing before the
Federal 9th Circuit Court of Appeals regarding the South Canyon Legal Case Appeal
and all other matters related, thereto.
Kristin McQueary, Deputy District Attorney, reported that she went to
Pasadena, California last week to argue in front of the Ninth Circuit Court of Appeals
on the Great Old Broads and the Wilderness Society’s Motion To Intervene in the
lawsuit. She stated they argued in front of the same panel as 2002 in San
Francisco. She noted the tenor of their questions was if they allow them to
intervene, what happened to the Settlement Agreement. She stated they spoke
about the practical and legal considerations on that. Kristin McQueary noted both
the County of Elko and the Department of Justice brought up that the Great Old
Broads had sued on the basis of the decision to rebuild the road in another lawsuit.
She noted under the NEPA process it allowed the Great Old Broads to enter their
decision making process through the Administrative Procedure Act.
Kristin
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McQueary stated there was no allowance for someone to intervene in a Quiet Title
action unless they had an interest in the property. Kristin McQueary stated there
was a 10th Circuit Case which creates a possibility of a conflict in the Circuit Courts.
Kristin McQueary stated the hearing was available on the internet. She noted each
side had 20 minutes and the Department of Justice and the County of Elko each had
10 minutes apiece. She felt from the questions of the Judges, they did not
understand the timing of the events that happened with regards to the intervention.
Kristin McQueary asked them to look at the timing of the events. Commissioner
Eklund-Brown commented that they had been turned down several times as
interveners and asked why they were being allowed a hearing. Kristin McQueary
explained that in 2001 after they had reached a Settlement Agreement, they moved
to intervene. She noted the District Court Judge turned it down on the first criteria
and did not address the other three criteria. Kristin McQueary commented the Ninth
Circuit Court stated the District Court should have allowed them to intervene.
Therefore, the District Court did a complete analysis of their standing to intervene in
the lawsuit and still turned them down. She noted that Judge Hunt in Las Vegas
also turned them down but stipulated that they could participate as friends of the
court. Kristin McQueary commented that the interveners had filed voluminous
motions so their voice had been heard. She noted that case law was clear that they
must have interest in property to intervene in a Quiet Title action. Kristin McQueary
explained the interveners were attacking the way the federal government said in the
Settlement Agreement that Elko County had an RS 2477 right of way. She stated
their attack was based on it being an agency decision and did not go through the
Administrative Procedures Act. She stated that was a litigation decision of the
Attorney General’s Office, who had the authority to settle lawsuits. Kristin McQueary
commented that the federal government had made the decision to fix the road and
this Commission had approved that decision. She noted the interveners argued that
was arbitrative and capricious. Kristin McQueary noted that Mike Freeman was
leaving the law firm he was with and moving to Earth Justice and taking this lawsuit
with him.
Commissioner Ellison noted there was a battle in Utah on the RS 2477 in
Congress. He inquired if this would aid the case. Kristin McQueary noted they had
a good decision in Utah several years ago that supported their key point. She noted
another decision came out in the Tenth Circuit but the decision was very convoluted.
Kristin McQueary stated she could not predict what the Ninth Circuit would decide.
Commissioner Myers noted that depending upon the elections and Congress that
may affect the outcome. Kristin McQueary believed that was why the Great Old
Broads and Wilderness Society were dragging that out. She noted that she was the
only attorney that had been physically on the road. She offered to give them a tour
of the road.
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B
Jennings Way Annexation:
Discussion and consideration of approval of the acceptance of conveyance of
a quick claim deed from Lucille C. Beverly, Grantor, to Elko County, Grantee, and all
other matters related, thereto.
Kristin McQueary noted that a portion of the street was owned by the City on
one side and the County on one side. The City would like to have the whole street.
Kristin Brown noted that Randy Brown researched that and it belonged to Ms.
Beverly. She stated Mrs. Beverly voluntarily quick claimed that to the County. She
stated it was Randy Brown’s intention for the County to quick claim that to the City.
Kristin McQueary noted that Mrs. Beverly was very generous.
MOTION: Commissioner Ellison moved to accept the Quick Claim Deed
from Lucille C. Beverly, Grantor, to Elko County, Grantee.
Commissioner Eklund-Brown seconded the motion.
The
motion was passed unanimously.
XI.
ELKO ARCHERY CLUB USE AGREEMENT:
Discussion and consideration of approval of the renewal of the use agreement
for the Elko Archery Club, non-profit association, to use the site near the Summit
Estates on a BLM R&PP lease near the Summit Estates and all other matters related
thereto.
MOTION: Commissioner Myers moved to renew the Use Agreement for
the Elko Archery Club. Commissioner Russell seconded the
motion. The motion was passed unanimously.
XIII. COMMISSION AND COMMITTEE REPORTS:
Commissioner Myers:
Elko County Economic Diversification Authority (ECEDA) Board – He noted
there was a major company wanting more than 1,000 acres.
City of Elko – No report was submitted.
Regional Transportation Commission (RTC) – No report was submitted.
Nevada Department of Transportation (NDOT) Liaison – No report was
submitted.
Northern Nevada Regional Transit Coalition – No report was submitted.
Auditorium Authority Board (ECVA) – He reported that ECVA Chairman,
David Huckaby, was in a San Francisco hospital.
Nevadaworks – No report was given.
Wildlife Advisory Board – He stated there would be a State meeting in
Winnemucca next Friday and they would discuss opening the elk management north
of Wells. He noted there was a meeting next Thursday with NDOW to discuss the
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Metropolis dam and wanted to talk to the Commission about a purchase of a pond
outside of Elko and inquired if the County was interested in establishing a park.
Wildlife Arbitration Board – He reported there was no meeting held.
Nevada Division of Wildlife Liaison – No report was submitted.
Nevada Division of Forestry Liaison – No report was submitted.
Sheriff Department Liaison – No report was submitted.
Commissioner Eklund-Brown:
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City of Carlin – She went to the meeting.
Tuscarora Community – No report was submitted.
Recreation Board – No report was submitted.
Nevada State Land Use Planning Advisory Commission (SLUPAC) – She
stated that there would be a meeting on April 11th and the State Engineer would
be there.
Humboldt River Basin Water Authority - She stated they would meet on the
th
14 of this month.
Northeastern Nevada Stewardship Group – No report was submitted.
Mining Sustainability – She stated they met last Monday and they were
going forward with a plan to recruit the National Mining Sustainability Conference
to Elko. She noted there were 150 members at the last conference. She had
attended the Barrick EIS meeting on the expansion of Gold Strike and submitted
her notes to Robert Stokes. She stated the company doing the EIS downplayed
the loss of the employees and the impact to public services and infrastructure.
She noted that the County’s budget was in relation to that population, those jobs
and those tax revenues. She had submitted notes to them on the EIS.
China Spring / Aurora Pines Advisory Committee – She stated there was a
meeting coming up.
Central Nevada Regional Water Authority (CNRWA) – No report was given.
BLM Liaison, BLM – RAC, California Trails Center Board -She noted that
she was at the RAC meeting when the Commission’s emergency meeting was
held. She requested that in the future she would like that information be put in the
minutes explaining an absence of a Commissioner. She commented that she had
left the RAC meeting and came back to Wells that day.
BLM Jarbidge RMP Liaison – No report was given.
ECCWMA - Noxious Weed Liaison – No report was given.
USFS Liaison – Mt. City Ranger District Grazing EIS
Water Planning (Alternate) – No report was given.
ECEDA (Alternate) – She would be going to the workshop this Friday.
Juvenile Department Liaison - She would be going to the China Springs
meeting coming up and she would speak to them about the state not paying for
their portion of the Elko facility.
Commissioner Ellison noted that Senator Reid’s Office was working on the
mining reform bill but the verbiage was very confusing.
Commissioner Russell:
Museum Board – He stated they were looking at building improvements in
the way of heating and cooling and an extension. They had completed the
replacement of the carpet with a polished finish on the concrete.
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Commissioner Russell met with Dr. Evan Fulton, a UNR Cooperative
Extension Service representative. Commissioner Myers noted someone here had
a conversation with the President of the College. Commissioner Eklund-Brown
stated that there was an e-mail from the Farm Bureau. She stated the President
did not like the input he had received from the committee. Commissioner Russell
stated Mr. Fulton was supposed to represent the rural areas. He stated Mr.
Fulton’s background was in water issues. Commissioner Russell stated Mr. Fulton
worked for UNR Cooperative Extension Services but he was stationed in Las
Vegas. Commissioner Eklund-Brown commented that the President of the
University had received their letter.
Local Emergency Planning Committee (LEPC) – No report was submitted.
Central Nevada Regional Water Authority (CNRWA) - He stated that they
had discussed the resolution. Commissioner Myers felt that the full board needed
to review the resolution.
Humboldt River Basin Water Authority (Alternate) – No report was given.
Public Lands Use Advisory Commission (PLUAC) - He stated they would set
a specific date to complete the Public Land Use Plan. He stated that the Water
Resource Management Plan and the following recommendations would impact the
Natural Resources Committee. The Board discussed establishing the Natural
Resources Committee.
Nevadaworks (Alternate) – No report was given.
Nevada Association of Counties (NACO) Board – No report was given.
Northern Nevada Regional Transit Coalition (Alternate) – No report was
submitted.
Water Planning – Commissioner Russell felt that the water board would
present the plan to them in the future for approval. Commissioner Eklund-Brown
noted she did not have a copy of that plan.
Spring Creek Association – He stated it was an interesting meeting and
noted there was contention among their board members. He stated on the 18th of
March they would have a meeting regarding Spring Creek Utilities.
Regional Transportation Commission (RTC) – He stated there was no
meeting.
Commissioner Russell reported that on Friday there would be a Halleck Bar
Party at the museum. Commissioner Eklund-Brown inquired about the museum
extension. Commissioner Russell commented that he was on the architecture
committee. He believed they would come to the County for a contribution.
Commissioner Ellison:
Commissioner Ellison would be in Carson City Monday to meet with the
Governor and the State Contractor’s Board.
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Commissioner Ellison noted the President of the University met with the
NACO Board last Friday and stated there was a lot of misunderstanding. He
stated Elko County’s letter did not fall on deaf ears. Commissioner Eklund-Brown
understood other counties had submitted letters in opposition also.
Nevada Association of Counties (NACO) Board – He represented the State
of Nevada on the Wildlands, the Wildfire, the OHV and the Clean Water Act
committees. He noted that their recommendations would go to the congressional
staff for reading. He stated they focused on PILT which the Forest Service and
the Director of Agriculture publicly supported. He stated this would be addressed
in April. Commissioner Eklund-Brown inquired about the emergency funding for
the ranchers. Commissioner Ellison noted next week the Farm Bill would come
out. He stated the HR 5331 would probably die in the Senate which was the
supplemental money to the emergency bill. He stated PILT would be attached to
the emergency funding supplemental bill. Commissioner Eklund-Brown noted
there was still no funding for the ranchers, and it was two years later.
National Association of Counties (NACo) Representative – No report was
given.
Debt Management Committee – No report was submitted.
Senior Citizens – No report was given.
Humboldt River Basin Water Authority – No report was submitted.
Nevada Fire Safe Council – No report was given.
Insect Abatement – No report was given.
Commissioner Nannini:
City of Wells – He noted everyone knew what was going on there.
Heart Project - Wells Tire Recycling Plant – There was no update.
City of West Wendover – No report was given.
Library Board of Trustees Liaison – No report was given.
Hospital Board – The meeting was cancelled.
Fair Board – No report was submitted.
Central Dispatch Administrative Authority – He stated they made an offer to
Chris Whipple from Las Vegas to become the Director.
Indigent Accident Fund Board – No report was given.
USFS Liaison / BLM Liaison – He stated they met with them and talked
about the Jack Creek Bridge. Robert Stokes stated the next meeting was
scheduled for the 18th of March.
Sheriff Department Liaison – He had missed the last meeting with the
Sheriff.
Nevada Division of Forestry Liaison – No report was given.
Juvenile Department Liaison – No report was submitted.
ELKO COUNTY COMMISSION
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XIV. COMMISSION MEETING CALENDAR:
March 19, 2008 -- 1:30 p.m. – Elko – Courthouse
April 2 & 3, 2008 -- 1:30 p.m. – Elko – Courthouse
April 19, 2008 -- 1:30 p.m. – Elko – Courthouse
All Times Pacific Time
MOTION: Commissioner Myers moved to approve the commission
meeting calendar with the change of April 16th.
Commissioner Eklund-Brown seconded the motion. The
motion was passed unanimously.
XV. CONSENT AGENDA:
A.
Presentation and review of claims for approval
B.
Approval of Minutes:
February 21, 2008: Board of County Commissioners
Wells Area Earthquake Emergency Session
MOTION: Commissioner Ellison moved to approve the Consent
Agenda with corrections from Commissioner Eklund-Brown.
Commissioner Myers seconded the motion. The motion
was passed unanimously.
XVI. COUNTY COMMISSIONERS AND COUNTY STAFF COMMENTS:
Commissioner Russell commented that he had his first budget meeting with
Judge Puccinelli.
Robert Stokes stated he, Gerald Ackerman and Lynn Forsberg would be in
Carson City on March 11th for the CDBG grant application hearing.
XVII. NORTHEASTERN NEVADA REGIONAL RAILPORT:
Commissioner Ellison departed from the meeting room at 2:15 p.m. due to a
conflict of interest.
A. Discussion and consideration of issues related to the Northeastern
Nevada Regional Railport including options with regard to the development,
operation and management of the Railport and Industrial Park. Possible issues
for discussion and action may include Committee recommendations with regard to
the lease, sale or contracting out of all or portions of the Railport and/or Industrial
Park along with potential recommendations for contracting with consultants for
various components of this project and all other matters related, thereto.
Commissioner Myers stated they would be discussing whether to lease and
felt the commissioners should be informed of all the costs involved. He believed
time frames should be discussed. Commissioner Eklund-Brown noted they
wanted to confirm the path the Commissioners wanted that to go with regards to
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the ownership and lease versus sale. Commissioner Russell inquired if this
decision would be at a subsequent meeting. Robert Stokes noted it would be a
non-action work session.
B.
Discussion and consideration of approval of letters to the U.S. Corp of
Engineers and the Nevada Division of Environmental Protection (NDEP) regarding
plans and timelines for the Railport Project including a need for permit approvals
from those agencies in order to facilitate going to bid in April 2008 and all other
matters related, thereto.
Robert Stokes noted that the engineering firm was working with NDEP to get
permits on the Sherman Creek area. Commissioner Eklund-Brown noted the
Army Corp of Engineers had to determine whether they had jurisdiction. She
noted that whatever jurisdictional agency it was they would impact agenda item C.
Commissioner Russell inquired about the railroad crossing. Commissioner Myers
noted that Union Pacific would get a list to them of all the private railroad
crossings.
MOTION: Commissioner Myers moved to approve the submittal of the
letters to the US Corp of Engineers and the Nevada Division
of Environmental Protection regarding the planning
timelines for the railport. Commissioner Eklund-Brown
seconded the motion.
The motion was passed
unanimously.
C.
Discussion and consideration of the approval of the addition of a
Potential Creek Hydraulic Analysis/Base Flood Evaluation Study to the
TranSystems engineering contract to provide information for developers and fill
requirements in floodplain area that may also be helpful information in the NDEP
approval process and all other matters related, thereto.
Commissioner Eklund-Brown noted that a retention pond would be required
based on the flood plain and the runoff. She reported that Sherman Creek and
the flow system would be studied. She stated it would be an incentive for the
developer to have this information available. She asked for approval of the
$26,000 for the study.
MOTION: Commissioner Russell moved to approve the costs of this
hydraulic analysis/base flood evaluation study not to
exceed $27,000.00. Commissioner Myers seconded the
motion. The motion was passed unanimously.
Chairman Nannini called a recess at 2:23 p.m. and reconvened the meeting
at 2:32 p.m. All commissioners were present.
ELKO COUNTY COMMISSION
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XII.
ELKO COUNTY PLANNING AND ZONING COMMISSION:
Appeal Hearing:
James D. and Theresa L. Currivan & Lincoln Trust Company
Division Land into Large Parcels # 007-7100-0002:
In accordance with Notice 08-2008 and Elko County Code 4-9-10, conduct a
Public Hearing as requested by DAN AND CAROLEE JONES; WRPv TRUST;
FGPv TRUST; PEAVEY AND HOOTS; JOHNSON LIVESTOCK, LLC;
GORRELL TRAINING, LLC; LJ LIVESTOCK, LLC; MARTI HOOTS; GEORGIA
BLACK; CLEVELAND AND DEBORA GRAZIER and others, appealing the
approval by the Elko County Planning Commission on January 17, 2008 of the
Final Map of Division into Large Parcels for property described as follows: Section
10 and 15, T.36N., R.60E., M.D.B.&M., located in Starr Valley and accessed by
State Route 230, and all other matters related, thereto.
The County Commissioners may at the conclusion of the appeal hearing
sustain, modify or overrule the action or decision appealed, or may refer the
matter or a portion thereof, back to the Elko County Planning Commission for
further consideration.
Commissioner Nannini disclosed that the Attorney for the Currivans was his
first cousin Gary Di Grazia and legal council had informed him he would not be
able to participate.
Commissioner Eklund-Brown, Vice Chairman, disclosed that Randy Brown
was her husband but there was no pecuniary interest. She and Randy had met
with the Ethics Commission regarding conflicts of interest. However, she felt that
she should not handle this hearing as a protection to Elko County and turned over
Chairmanship of the hearing to Commissioner Myers.
Commissioner Myers assumed control of the meeting at 2:39 p.m. and
reviewed the hearing procedure with the meeting participants.
Randy Brown, Elko County Planning and Zoning, stated this issue was
heard on January 17, 2008 before the Planning Commission. He stated the
Planning Commission placed conditions A – N, as shown on the Staff Report.
Randy Brown stated the Planning Commission made a motion to also include the
following conditions:
“O) These parcels will not be permitted until there is a final resolution to
the encroachment upon Mr. Jones’ property.”
“P) This map shall not be approved until the final road inspection is
approved.”
“Q) Include verbiage regarding the 80’ easement and the subsequent
litigation regards that 80’ easement. It is to be included on the map
and referenced by case number.”
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Randy Brown explained this was in reference to the lawsuit between the
Currivans and the other owners in the area.
“R) Approval is contingent upon the applicant agreeing to record
irrevocable deed restrictions prohibiting future subdivision of each 40
acre parcel into smaller parcels.”
Randy Brown stated the motion was made by Commissioner Galyen and
seconded by Commissioner Forland. He reported the vote was 4 - yes, 1 – no,
and 1 - abstention.
Commissioner Myers understood that under the Division of Large Parcels
NRS required three items: 1) The road that must support emergency access; 2)
Cornerstones must be set; 3) There must be some documentation from the
Buyers if there were conditions. He noted there were some issues with fire
suppression, emergency access, health and welfare before them today.
James Copenhaver, Attorney for the Appellants, stated that he prepared the
Notice of Appeal. He received the response from the respondent’s attorney. He
would explain their position. He submitted copies of NRS exert which were
referenced by both parties in their letters. James Copenhaver stated the appeal
was based upon health, safety and welfare. He stated the appellants did not feel
that the Planning Commission could give attention to these issues and maybe the
Planning Commission was limited by the NRS. He noted the appeal talked about
the health, safety, welfare, fires and access roads for emergencies. James
Copenhaver reviewed NRS 278.4725 which spoke about procedures with regards
to approval of maps. He read a portion of NRS 278.4725: “1. Except as
otherwise provided in this section, if the governing body has authorized the
planning commission to take final action on a final map, the planning commission
shall approve, conditionally approve or disapprove the final map, basing its action
upon the requirements of NRS 278.472”. James Copenhaver stated NRS
278.472 did not say the planning commission had the authority to go over and
above that. James Copenhaver noted that Milt Grisham had asked at the last
Planning Commission hearing if they would take into consideration the health,
safety and welfare. He noted that Randy Brown and Kristin McQueary had
informed the Planning Commission that they had to abide by the statutes. James
Copenhaver commented that the County Commission was charged with more
responsibility. He noted that the statute spoke about the decision and that it could
be appealed by applicant or other person aggrieved. He noted that at the
planning commission hearing there was a discussion as to who was the aggrieved
person. James Copenhaver noted NRS 278.3195 said a “governing body shall
adopt an ordinance providing that any person who is aggrieved by a decision of:
(a) The planning commission....” James Copenhaver stated the County did not
have such an Ordinance. He stated in a case like this, the state law dictates what
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procedure should be followed. He noted NRS 278.3195 (2) stated any ordinance
adopted must set forth without limitation and then sets forth a list of items a thru g.
James Copenhaver noted NRS 278.3195 (2f) stated “in reviewing a decision, the
governing body will be guided by the statement of purpose underlying the
regulation of the improvement of land expressed in NRS 278.020.” James
Copenhaver read NRS 278.020 (1) “For the purpose of promoting health, safety,
morals, or the general welfare of the community, the governing bodies of cities
and counties are authorized and empowered to regulate and restrict the
improvement of land and to control the location and soundness of structures”. He
commented that they were saying the Planning Commission would have to
specifically follow NRS 278.472 as to what the requirements were with regards to
the map but when it comes to the Commission for review they have been
empowered to take into consideration all of the other factors associated with the
health, safety and welfare of the community. James Copenhaver stated because
the Commission had the authority and the responsibility to look at emergency
access, and access by all types of emergency vehicles was why the appeal was
made. He stated from the letters there was not a lot difference between what the
other attorneys were saying but the others characterize the statutes differently.
James Copenhaver stated the other attorneys stated it was authorizing them but it
was a mandating statute because it stated they shall adopt an ordinance and must
consider NRS 278.020. He stated their position was the Commission had plenty
of authority to go above and beyond that. James Copenhaver stated that to make
an argument that they had not done it anywhere else; as everybody knows when
dealing with land, land was unique. He stated that every piece of land falls on its
own merits, its own surface, and every case should be judged on its own merits.
James Copenhaver stated the concerned citizens in this area want the
Commission to listen to their concerns about the health, safety and welfare issues
there and how to address those in addition to the conditions imposed upon the
final map. James Copenhaver asked that his letter become part of the record.
(Section 2 in the appellant’s packet) He stated that they have tried to organize
this and Carolee Jones had tried to get all the property owners gathered up and
submitted packets to the board members.
Carolee Jones, property owner in Starr Valley, stated the letter James
Copenhaver had just commented on was part of their packet. She commented
that she and her neighbors were on record several times with concerns regarding
this development. Carolee Jones stated that while they were very supportive of
property rights and not anti-development, their concerns were based on the fact
that this would be done properly and correctly in accordance with the law and with
the utmost concern to safety. While they were pleased to see the conditions that
they have seen thus far, they did not feel the County had been giving proper
ELKO COUNTY COMMISSION
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attention with regards to health, safety, welfare, and more specifically to NRS
278.020 health, safety, morals and welfare. Carolee Jones stated in the packets
there were materials offered for the record and the material would be referenced
throughout the hour. She stated they would address the issues such as
secondary access, with regards to fire and safe access issues. They would
introduce materials to show the history of this case precludes the approval of this
map with conditions to be met and that the map should only be approved after all
the conditions were first met. Carolee Jones stated they would reiterate that there
was no possible way for this map to be technically correct.
Carolee Jones stated that two members of their community, Dick and Carol
Wachtel, could not be present today and they had submitted a letter which was
located in Section 3 of their packet. Georgia Black read Dick and Carol Wachtel’s
letter into the record.
Walt Howell, Starr Valley rancher and Deeth Fire Chief, stated that region
was considered a high hazard for fire. He noted that most of that area had a
brush and grass fuel density of 5 to 6 tons to an acre in that division of lands into
large parcels. He noted that other pertinent factors were the narrowness of the
canyon with saddles of tall dead brush standing and in that was the grass. He
stated that would create a potential for extreme fire behavior in that area similar to
the Stephens Fire because there was only one access in and one access out.
Walt Howell stated that they seen the chaos last year on the Stephens Fire with a
one road access with the spectators, news crews, and fire trucks on that County
road. Walt Howell stated this new road had blind curves and a bottleneck at the
bridge which reduced the road to 14 feet in width with 16” guardrails. He stressed
that was not a safe situation. Walt Howell questioned that after the first year why
hadn’t the Currivans understood the valid concern with safety. He felt a
secondary access was critical for the safety of the subdivision. Walt Howell noted
all the rural areas had bus loading zones and inquired whether there would be a
bus loading zone placed down by the highway. Walt Howell inquired if they would
park alongside the single access which would make the road narrower. He
believed they needed a community well up there with a water storage tank in
place in case the power was gone. He asked why the Currivans had not talked
about installing firebreaks such as green strips. He noted these were just a few
safety items which would be the minimum. Walt Howell stated that looking at the
development as a firefighter, using common sense, the highest priority was a
second access. Walt Howell believed the secondary access could be used as an
escape route. He stated that over 90% of the firefighters were volunteer
firefighters. He commented upon the number of hours to qualify as a firefighter.
He believed the safety concerns should be addressed for the firefighters and the
EMTs. He stated there was a need for a secondary access.
ELKO COUNTY COMMISSION
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Jay Black, resident of Starr Valley, stated there were two letters in the
packet; one from the Northeast Nevada Firefighter’s Association and one from
Chris Howell in their packet (these exhibits were under Section 5 of appellants’
packet). Jay Black read Chris Howell’s letter into the record, letter dated March 3,
2008.
Chelsea Jones read into the record Tom Turk’s letter dated March 5, 2008,
located in the appellants’ packet under Section 6.
Grant Gerber stated the Currivans had the right to promote their property
and he supported that right. He noted the County had the right and the duty to
protect the citizens of the community, the people buying the property, the people
that have easement rights there already, and the property owners that were
around it, the firefighters and the emergency responders. Grant Gerber stated the
Currivans have already had three lots approved and they were proposing 21 more
which would make 24 lots. He commented that added to the 7 lots which already
had easement rights to make a total of 31 lots. He stated that after he realized the
problem, he felt they needed professional help. Therefore, he hired Michael
Shanks and Thurston Testing Labs to review the property and determine if there
were health and safety issues relating to the road. He noted that Mr. Shanks has
concluded that there were definitely issues and he would be addressing those.
Grant Gerber commented that he owned property where the road was the most
dangerous and voiced concern for his children and grandchildren. He stated they
had gone up that road since 1956 but the road had been changed and it was more
dangerous than previously. Grant Gerber read a portion of Shanks Engineering’s
report as follows: “My greatest areas of concern are with the cut and fill slopes.
Many of the slopes, particularly adjacent to the Gerber property, exceed a 1:1
slope (horizontal to vertical). These slopes are in alluvial materials consisting of
clay, silts and clayey gravels. These soil types are not stable at slopes this steep.
For soils of this type, slopes should not exceed 3:1 without slope
protection.......Permanent slopes in these soil types should not exceed 2:1 without
the use of retaining walls.” Mr. Gerber stated there were no retaining walls. “Cut
off ditches should be constructed at the top of cut slopes to divert runoff from the
slope face.” Grant Gerber stated that there were no cut off ditches to pick up the
water. “As constructed, these slopes will slough off and/or fail.” Grant Gerber
stated that in that area they were built up over six feet or more of fill of this type of
clayey soil. He stated that in the same area was a large conversion of water
coming from the slope, water coming down the canyon, water in the irrigation ditch
and if the 8” pipe broke more water would flow to this area. (From Shanks
Engineering Report page 2) “By saturating the clay sub grade, the slopes above
your property will be unstable and susceptible to sloughing and possible slope
failure.” Grant Gerber noted that in the 1930s there was an orchard that became
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saturated and the entire orchard slid into the creek. He noted the area where the
road was built was much steeper on the same type of soil. He stated that if it
saturates then it would slip and his cabin was right below that road and in the
pictures they could see that. Grant Gerber read paragraph 2 of Shanks
Engineering’s Report into the record: “The top of the fill slopes in addition to
showing factures across the face are loose. Snow patterns in this area as
documented in the attached photo show that the edge of the road adjacent to the
fill slope is the first to melt off.” Grant Gerber noted that he did not notice this
because he always drove where it melted off. He stated Mr. Shanks pointed out
to him that was dangerous especially on fill six to eight feet deep of clay. “This will
encourage traffic to hug the edge of the fill. As these slopes are exceptionally
steep and over 30 feet in height in some areas it will present a significant safety
issue as the loose fill soils may slough off or grab a wheel. This could result in a
vehicle going over the embankment endangering the occupants as well as people
and property below. The most dangerous area is directly above your cabin. A
berm, retaining wall, or other type of safety feature should be considered to
prevent traffic from going over the embankment.” Grant Gerber noted that the
Shanks Engineering Report also mentioned the culverts. He stated there were
culverts above his cabin and two 6 inch culverts were to carry all the water that
comes in the ditch. He had irrigated with the ditch and did not believe those two 6
inch pipes would carry the water. He noted that those culverts were filled with dirt
because of the way they were built and would not carry any water today. He
stated the other culvert 15 yards away was also filled with dirt so the whole area
would saturate the fill and slough off like Mr. Shanks had stated. Grant Gerber
noted that Mr. Shanks pointed out the bridge across Ackler Creek was only 14’ in
width. He read from the Shanks Engineering Report: “The width of the road
easement was not sufficient to construct the road without appropriate engineering.
If the cut and fill slopes were retained by engineered walls, the road could be built
within the 80 foot easement.” Grant Gerber pointed out that the easement was an
80 feet easement. However, in this location they had went over 11 feet and that
was without doing a ditch above the embankment or getting the 2:1 slopes. Grant
Gerber stated that Mr. Shanks had some calculations that showed they would
need an additional 140 feet more to solve this problem. He stated they were
asking them to solve the problem with utilizing walls of some type to hold the dirt.
Grant Gerber noted Mr. Shanks would like to see the plans for when this was
done. Grant Gerber commented that Mr. Copenhaver had requested the plans
but they had not been presented. He stated Mr. Brown had not been presented
the road plans. Grant Gerber questioned whether they followed the plans. He
believed this Commission should require those plans before it did anything further.
Grant Gerber believed that there should be a set of as built plans so that they
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could certify that this road was within the 80 feet easement and had appropriate
engineered slopes. Grant Gerber felt they should have a water survey and some
soil testing. He stated that their soil tests showed that this road would fail. Grant
Gerber noted this road would need a lot of maintenance. He noted in the past
they had done the maintenance but the road had been there within the last 150
years. He commented that when the Currivans put in the road there was no bond
in place and no CC&Rs in place. He stated nobody would be responsible for this
road. Grant Gerber stated that last time when there was a washout on the road
he received a letter from the Currivans demanding that they fix it. He commented
that the Currivans had created this monster and he felt they should get this fixed
before they walk away. He volunteered their engineer to help him get this road
fixed. Grant Gerber stated this Commission had the duty for the health and safety
of the property owners and anyone who would use that road to require that the
road be fixed. He noted that at the back of the report it contained a map which
showed the way the Currivans could develop a secondary access on their own
property. Grant Gerber stated that at no time did they need an access through
Marty Hoots’ property.
Commissioner Eklund-Brown commented that this
Commission had not stated that. Grant Gerber stated that it had been said by
people in the County, and he had heard it at the Planning Commission. He stated
it should not be part of anyone’s thinking that Marty Hoots should be burdened
with an emergency access. Grant Gerber stated there was a need for a
secondary access. He stated that this Commission had not imposed that burden.
Commissioner Eklund-Brown explained that they had not imposed that access
because they did not have the right to do that. Commissioner Ellison inquired if
there was an alternate proposal on the table, and asked if Grant Gerber would
present that to the Currivans as an alternate access. Grant Gerber felt the
Currivans knew their property better than they did. He just wanted to let the
Commission know there was a possibility of an alternate access. Commissioner
Eklund-Brown commented that the Commission did not look at the road at this
point and that would be done by the County staff or the professional the
Commission brings in prior to the final map being approved. Commissioner
Eklund-Brown stated that anything he had from an independent engineering
company could be presented to the staff. Grant Gerber noted that this was a
different situation and the road had been built for the past several years.
Commissioner Eklund-Brown commented that it was not at the County standard.
Grant Gerber stated that his family did not know that and the buyers did not know
that. He did not believe the new buyers being shown up there had been told that.
Commissioner Eklund-Brown commented that whoever was selling the property
should be disclosing that to them. However, the sales could not be completed
until the final map was recorded and the final on the road permitting would be
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done prior to that. Grant Gerber commented upon the number of people that
would have to use that road and pointed out the safety hazard when driving too
close to the slope. He felt this Commission had a duty of health, safety and
welfare. He believed that through the proceedings it was time to require the
standards to be kept and it was time to look at the plans. He noted that the road
plans were not provided. He felt they should be presenting their CC&Rs. He
noted that when Spring Creek was being planned everything was before the
Commission. Grant Gerber recommended that the Commission require this to be
brought back to them rather than to lay it on Randy Brown. He felt they should
look to see if the standards had been met because it was hard for one person to
take on that responsibility. Grant Gerber asked that the road be brought up to
standards before their decision. Kristin McQueary asked where his cabin was
located. Grant Gerber stated it was in Section 10. Grant Gerber commented that
Section 15 was above his cabin.
Commissioner Ellison noted the first testimony pertained to NRS 278.020
and also NRS 278.3195. He stated based on the Planning Commission’s
directions and word “shall adopt” pertaining to health, safety, and welfare. Kristin
McQueary noted that they put a time frame on everybody’s testifying she asked he
hold his questions for staff comments.
Grant Gerber noted traditionally on an appeal the appellant would go first,
the respondent and then there would be a rebuttal. He asked time for a rebuttal.
Mike Shanks, of Shanks Engineering, noted that Grant Gerber hit all the
highlights in the report. He believed that the access road was a contentious issue.
He read a paragraph from his engineering report: “While the County Code is not
specific with requirements for a division of land into large parcels, the intent of the
code seems fairly clear. In Subsection 5-4-1, Development Criteria, under Open
Space and Special Lands, interior and access roads are required to meet a 26’
minimum rural gravel standard. All major subdivisions in excess of 16 lots shall
have at least 2 access routes and provide access to adjoining parcels. If
estimated daily traffic counts exceed 200 vehicles per day then a 32” wide gravel
rural collector standard is required. These thresholds are driven by traffic and
number of lots. While the division of land into large parcels is exempt from these
standards it is not exempt from the safety and welfare of the general public. The
standards for secondary access and other roadway development criteria were
developed to protect the public safety and welfare. As these thresholds apply to
subdivisions, it seems reasonable to use the same standards in establishing
thresholds for a division of large parcels. While I have not reviewed the Final Map
or seen projected growth plans in the area, it seems reasonable to expect that
development in excess of 24 lots is planned. With the acreage owned by the
Currivans in this area, as many as 90 lots could be subdivided. This subdivision
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lies in an areas exposed to extreme fire danger. The County should require a
secondary access or safe haven for fire safety.” Mike Shanks stated his point was
safety and welfare affects everything including division of land into larger parcels.
He noted that there was a threshold established for subdivisions that stated once
they get over 16 they needed a secondary access. He commented that did not
have anything to do with the density of the lots. Mike Shanks stated that when
there were 16 people using the same road there should be a secondary access.
He believed that the threshold had already been established in the code.
Commissioner Ellison noted that Mike Shanks stated 16 people traveling the road
and he asked Mike Shanks to clarify if he meant the existing people. Mike Shanks
stated his intention was 16 lots or parcels. Commissioner Eklund-Brown
commented 16 lots per division.
Carolee Jones noted that there was a previous discussion about a
secondary access going down through Marty Hoots. She stated it was mentioned
at the Planning Commission and referred to page 23 of the January 17th meeting
minutes: Demar Dahl: I think a secondary access to start with would be
extremely important. Thank you. Commissioner Galyen asked if there is a place
for a secondary access. Mr. Dahl stated there is. Commissioner Hartley asked
where, shown on the map, would that secondary access be located. He stated
the old snowmobile track and the power line access. Commissioner Galyen asked
if it went through Marty Hoots’ ranch. Mr. Dahl, right, but whether or not it is
available, I don’t know. Geographically it is possible.” Carolee Jones stated Mrs.
Currivan also made reference to the secondary access during that meeting: “Mrs.
Currivan: Marty Hoots has a road next to her and the County has the dedicated
part of 1 mile that goes up the other canyon that was referred to. Hunters go up
that road all the time. Mike Morrison pulls his truck and trailer with maybe 8
horses and mules up that dirt road all the time. So if there were a problem with
the fire, would people not go up that road? Yes, if they need to.”
Travis Gerber presented the Commission with a copy of the case that had
been referenced in the letter from James Copenhaver, Isla Verde International
Holdings, vs. City of Camas, Washington decided July 11, 2002. He stated this
case stands for what the Commission was empowered based on health, safety
and welfare. This power was inherent with any legislative body to require as a
condition of this subdivision to provide a secondary access for fire, safety or
emergency vehicle access. He had pulled exerts from the case and highlighted
them for the record. Travis Gerber stated the issues are similar to this situation.
In that case, a number of local residents testified that the road often becomes
impassable in winter conditions. Several residents expressed concerns about fire
safety issues. He noted that the Fire Marshal also spoke about fire protection. He
described the steep-sloped nature of the property, and the danger of wildfires in
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the area. He asked for a secondary access road for emergency vehicles,
describing access into Dove Hill as a very bad situation. Travis Gerber stated
based upon all these factors, the Commission in that case found that it was in the
best interest of the public to acquire a secondary access for the protection of the
people.
Marty Hoots agreed with Demar Dahl that this division into large parcels
would destroy the rest of the businesses surrounding it. She noted that the
secondary access was brought up in the first County Commission meeting. She
stated Commission Nannini brought up the discussion about the road to the
snowmobile track. She wanted it established that she had locked the gates and
people do not go up there at will. She noted the gates were locked at the top and
the bottom. Marty Hoots noted that it was a “takings” if they allow a subdivision to
use that and for people to go through there. She stated it would be an
infringement upon her property rights. Marty Hoots stated that the Commission
had a moral obligation to protect them all, not just the people who stand to make a
lot of money. She noted that taking all of this agricultural property out of
production was a huge problem. Marty Hoots stated using that road which was
unspoken, unwritten and undefined would create a huge liability, financially,
insurance wise because the road was not up to standard anywhere. She stated
the agricultural road on her property was not traversed in the spring and autumn
including the winter. Marty Hoots did not believe it was a good emergency escape
on an agricultural path. She stated that no way would she consent that the path
would be an access to this subdivision. She stated it would be the demise of her
business and the rest of the agricultural production that was in that valley. She
commented upon the extensive testimony about that and that the County had a
study which proved the value of the agriculture to the County. Marty Hoots noted
that there were other uses than only land that a realtor could make money on.
She believed that there were higher uses for the land in that area. Marty Hoots
cautioned that if the land was not grazed then the fire danger would become
higher. Marty Hoots stated that there were a lot of things they need to take into
consideration and the property rights of everyone were utmost.
Commissioner Ellison inquired how long the gates were locked. Marty
Hoots noted that the gates were locked every year during hunting season and a
couple of the years she had forgotten to take the locks off. Kristin McQueary
inquired if she was talking about the road closest to her and not about the access
road into the proposed division of land parcels. Commissioner Eklund-Brown
inquired about the snowmobile tract and asked if that was the potential access to
the proposed ski resort in the past. Marty Hoots replied in the affirmative. She
noted it was a County dedicated road on both sides of her property. She stated
that was isolated and Kristin McQueary had previously stated there was no other
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road in Elko where a road dedication was isolated but there was such a road.
Marty Hoots explained the road was on the other side of Section 22 and went up
to Section 23. Marty Hoots commented that it went down and hooks into County
Road in Section 8 and goes to Section 16. Commissioner Ellison stated he asked
the question to put it on record for both sides that this was not a prescriptive right
of way, it was private. Commissioner Russell inquired for how many years. Marty
Hoots replied that it had been locked every year, forever.
Dan Jones stated the folder/packet was submitted for the record and there
were many things in it. He stated that there was an encroachment onto his land.
He stated it was shown at the end of the booklet in the pictures. He commented
that this was described at the Planning Commission as a small toe of land but they
drew a final map which showed 8 feet between the road and his property. He
stated this was on a steep slope and explained it was 8 feet of fill on the Currivan
property and there was 35 feet of fill on his property. Dan Jones stated that this
made the map incomplete or wrong. He noted that there was also another small
boundary line which was 30 feet in difference in a couple of the deeds between
him and the Currivans. He noted that they had serious concerns about the health,
safety and welfare of the community. Dan Jones stated health, safety and welfare
was in the Elko County Code and in the Nevada Revised Statutes. He stated
there were few if any parameters on how to apply them. He commented that not
everything could be written into code or law and at some point common sense and
reasoning was there even if statute was not. Dan Jones stated elected officials
were here to apply that common sense and reasoning as it applied to the health,
safety and welfare. He noted the Elko County Fire Plan through RCI, in the
booklet, goes along with the common sense that Starr Valley was an area of high
hazard when it comes to fires. Dan Jones stated that common sense said one
road in and one road out in a high hazard area was extremely dangerous. He
noted this danger not only extended to the future county residents of Starr Valley
but also to the fire personnel and those who were willing to help the neighbors in
time of danger. Dan Jones stated common sense points out that a secondary
access was necessary and reasonable for the health, safety and welfare. He
noted that Mr. Gerber had shown how that could be mapped out on the Currivan’s
property so that they could obtain a secondary access on their property. Dan
Jones stated Mr. Copenhaver and Travis Gerber had shown that the Commission
was given the power to insist that they have a secondary access that was not a
“takings”, that was on property of their own. Dan Jones stated that as a
community their concerns over health, safety and welfare were founded especially
in the light of the high fire danger area with only one access in and one access
out. He stated this includes the bridge which reduces the 26 feet wide road to a
14 feet roadway width. Dan Jones noted there were pictures in the booklet which
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showed a 6-8 inch guide on bridge. However, when the snow filled up the bridge;
they could slide off into the water below. He believed the bridge needed
guardrails. He stated that people may be coming out of there with horse trailers
and emergency vehicles may be coming in then it would bottleneck because there
was only one bridge to cross. He stressed that they need a secondary access.
Commissioner Russell noted in the packet it said an encroachment of a 35 foot fill
on Jones land. He inquired if just the fill was on his land or if the road was on his
land. Dan Jones stated it was just the fill and pointed out the wooden stake
placed by Grange Surveying in the picture. Commissioner Russell inquired if the
Jones were approached by the Currivans to encroach upon his land with the fill.
Dan Jones replied in the negative. Commissioner Russell stated that would
become a civil matter for him. Dan Jones stated it was a civil matter.
Commissioner Russell inquired if the road was accurate according to survey. Dan
Jones stated that if they look at the small map in Section 10 it showed the
Currivan land. Commissioner Russell stated he wanted to make sure the incorrect
map was not submitted to the Planning Commission. Dan Jones stated they had
gone to court on the incorrect map. He stated that it came back again and again
to the 24 hour emergency access. He noted they cannot get an ambulance and
fire vehicles up there. Commissioner Ellison inquired if the road width would have
met the road requirements if that fill was not present. Commissioner EklundBrown stated that these were issues that should be addressed in the future.
Commissioner Ellison felt this was important because people were trying to use
the road now. Commissioner Eklund-Brown stated that they could not sell the lots
until the final map was signed off and recorded or it was illegal. Dan Jones noted
the fill was upon his land and it was impossible to stop the fill spilling over unto his
land unless they put up a retaining wall. Commissioner Ellison asked if they were
using that fill in addition of the road or was it a portion of their standard width
requirements for the roadway. Commissioner Eklund-Brown stated that either
way there was an encroachment, a problem and it needed to be rectified. Dan
Jones stated that for them to get the road there, they had to have the fill. He
stated there was 35 feet on his land. Carolee Jones noted that the map was
drawn showing a road and 8 feet of fill. She felt that Mike Shanks would tell them
that the road could not be constructed according to the way the map was drawn.
She noted that they have that proof now because the road was constructed but
could not be built according to the way the map was drawn; the road must be
moved. Carolee Jones commented that in their packet they would see the letter
from her and her husband to Mr. Randy Brown explaining another reason why the
map was not correct. She noted Currivans have proposed to them a land
exchange in Section 10. She stated their letter to Randy Brown was dated March
4, 2008. She pointed out on the map that the Currivans offered to exchange the
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land in the yellow for the purple. If they accept the exchange, which they felt they
were exchanging their land for their land, the map would be wrong. If they don’t
accept the exchange, the map was wrong because the map was showing the land
as the Currivans. Carolee Jones stated that the map was definitely incorrect.
Commissioner Eklund-Brown inquired if that was because it showed 8 feet as a
right of way between their land and theirs. Carolee Jones stated because an
engineer was telling them that it could not be built. Commissioner Eklund-Brown
agreed that there was a big overlap. Carolee Jones stated that if they assume the
road was not built; then it could not be built according to way the map was drawn
without sloughing over onto their property by 35 feet. She stated that they had not
been approached by the Currivans to see if that was okay. Commissioner EklundBrown inquired if there were survey stakes at the time of construction that showed
that overlay and that encroachment. She stated normally they stake where the
road would go and stake the property lines. Carolee Jones stated she did not
know. She believed a road builder would tell them that this road has to go over.
Commissioner Eklund-Brown asked Mike Shanks about the proposed secondary
access on the Currivan property. She noted the proposed road looped back up
the hill and back down into the original access. She did not feel that it was a
secondary access but more of a loop. She noted that it did not access into the
County road down below like they were talking about going through Marty Hoots
residence. Mike Shanks noted that it addressed the upper end but once they get
to the bottom of the hill they could tie it back into the county road which went two
different ways so it would be a true secondary access, if they modified the bottom
portion.
Grant Gerber stated the way the loop was to bring it back. He stated the old
road presently went down also. He noted that the secondary access would also
come out on the highway at the same location so there was an error on the map.
Commissioner Ellison felt that the alternate road could have been the
primary which would have ended any and all the problems they had at the upper
side. Grant Gerber agreed the alternate could have been the primary road but
they would still need a secondary access. Grant Gerber stated that the primary
road could have all been on the Currivan’s property. Commissioner Ellison stated
if that was true then they would not be having these discussions. Grant Gerber
stated that they would not be having these discussions if they had not built that
huge road with fill on the three properties belonging to the Gerber’s, Jones and Dr.
Oswalt’s. Grant Gerber stated that if the Currivans had built it as a smaller
secondary access out of there then he would not be here.
David Stanton, representing the Currivans, stated they had heard a lot of
technical issues. He stated Chris Woster would address those technical issues
regarding the secondary access and emergency access.
David Stanton
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responded to the first comment made regarding their recent letter to the
Commission responding to the February 28th letter from the appellants. He stated
they did not receive the February 28th letter from the appellants but rather received
a copy from the County. He noted they did not receive the Notice of Appeal from
the appellants but rather from the County. David Stanton stated they never
received a copy of the packet they received. They heard about the Shanks
Engineering report for the first time at this meeting. He commented that this had
been consistent throughout this entire process. David Stanton asked the
Commission to keep in the back of their minds that they were springing new things
on them at the meetings or right before the meetings which was not consistent
with a real bona fide concern with engineering issues or health and safety issues.
He stated they had not had a chance to respond to that but felt they could respond
to those issues. David Stanton stated they disagreed with the appellants about
how NRS 278.472 interacted with 278.020 and some of the other statutes. He
stated it was their interpretation that NRS 278.472 does contain the requirements
applicable for a final map. He stated that there was a rule of flow that says if they
have a more specific statute, an express statute that sets forth specific
requirements that that could not be modified, amended or added to by a general
statute. David Stanton stated that NRS 278.020 was a very general statute. He
asked if it has the force of law, yes it does, but when you interpret statutes you
have to read them together. He stated that Courts did that all the time and that
was part of what they were paid to do. He stated if they compared NRS 278.020
with 278.472 they would see that 472 contain specific requirements. He stated
they did not think .020 gave a governing body a cart blanche to impose any
condition it wants and justify it by health, safety and welfare; just as a legal
principal. He stated that Chris Woster would address the secondary access and
fire issues. David Stanton commented that the letter from Tom Turk did make the
recommendations of a secondary access should be a requirement upon further
division of the land. He noted that was consistent with what the staff had already
recommended and that was not a problem. David Stanton stated that had never
been an issue. He stated in terms of general discussions about the conditions of
the road right now; he believed this Commission understands that they were at the
final map stage. He stated there did not even have to be a road there. He stated
that all there needed to be was a final map. He stated Chris Woster would
address the objection as to the location of the roads on the final map as is. He
stated discussions about the conditions of the road were irrelevant as to whether
the final map should be approved. He stated as it has already been pointed out;
none of this property could be sold, legally, until the final map had actually been
signed off. He stated this would not happen until the roads have been inspected
by the County. Commissioner Eklund-Brown noted the letter recommended a
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secondary access at this time. David Stanton stated they had not received a copy
of that letter. A copy of the letter was submitted to Mr. Stanton. David Stanton
noted that Alan Kightlinger made a series of recommendations for the Northeast
Firefighters Association and a secondary access was not included. David Stanton
commented that there were no legal requirements for a secondary access. He did
not believe that it was appropriate. They do not believe it was consistent with
other requirements elsewhere in the County. He stated they do not believe they
should single out the Currivans for this unique requirement considering this type of
development this was just because there was a lot of opposition. He noted that
there was a statement made that they have already sold parcels to people and
paid money on it. David Stanton stated that had not happened and there were no
buyers. He stated that none of these large parcels had been sold to anybody. He
noted that there was no subdivision and there was no law that says division of
land into large parcels has to have a secondary access. He stated that he
mentioned before to this Commission that the Nevada Legislature deliberately
designed the division of land into large parcels to have a minimum of
governmental oversight and regulations, a minimum of requirements to live with.
David Stanton stated that subdivisions have a lot more requirements. He stated
whether the County likes that or not like or whether he or a buyer liked that or not;
that was the way the statute worked. David Stanton stated they do not believe
there was legal authority to impose that requirement on that division of land. He
noted that nevertheless that condition was placed and incorporated if there was to
be further subdivision of the land placing an additional burden on that road. He
stated they have not appealed that or objected to that. David Stanton noted there
was a reference to the Isla Verde International Holdings, vs. City of Camas,
Washington case. He has read it and it was a Washington case. David Stanton
noted that case involves a complete different statutory scheme and involved
completely different issues. He noted that the appellants really have not
acknowledged that they know the secondary access was not a legal requirement
for this division of land. David Stanton stated that in Washington there was a
completely different set of laws, requirements and circumstances and they did not
believe that case had any impact or effect upon this situation. Dave Stanton
stated that in terms of the Dan and Carolee Jones encroachment issue; he stated
that resolution of that issue has been made within the conditions for approval of
this final map. He stated that was something the Currivans had to comply with.
David Stanton stated that it appeared to him to be a resolved issue. He noted that
they were not starting. This was an appeal where the appellants had the burden
to demonstrate proof that the Planning Commission was wrong or demonstrating
that the Planning Commission made an incorrect decision. He stated with this
hearing there had been five hearings on this division of land: two before the
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Planning Commission and two before this Commission during the tentative map
approval process. He stated that the Currivans’ opponents have come up with all
kinds or reasons over these hearings and today, for not approving the Currivans’
division of land. He stated they have not brought anything new before this Board;
they have heard it all and so has the Planning Commission. He noted the
appellants’ argument on appeal was that this Commission should overturn the
Planning Commission’s decision, reverse its own decision, in approving the
tentative map with generalized health, safety and welfare grounds. David Stanton
stated that throughout this process they have had to address and readdress a
multitude of health, safety and welfare issues including the impact upon the
County roads, NDOT approval, the increase of vehicular traffic, fugitive dust from
gravel roads, solid waste, sewer and septic matters, water quantity and quality
issues, secondary access and emergency access, fires, snow removal, fencing in
livestock, the Ackler bridge and any of the Army Corp of Engineers’ approval
issues, condition, size, design and construction of roads in and around the
development, preservation of easement rights, boundary line dispute, aesthetics,
impact upon agriculture and movement of cattle, and some issues that they could
only describe as that some of the opponents to this subdivision were people who
really did not like the Currivans or had a history of bad luck with the Currivans. He
stated some people may not dislike the Currivans but just do not like the idea of
more people living in their area. David Stanton stated the appellants’ main focus
now was the secondary, emergency access issue. He stated that this issue has
been hashed out extensively during the past four hearings. He stated the County
Commission and the Planning Commission have followed the recommendations of
staff on this point. For that reason, as the matter stands now, no secondary
access would be required but it would be required if there was further subdivision
or division of lands that places an additional burden on the existing road. David
Stanton stated the appellants cite an RCI risk assessment on the road. He stated
they argue that there is a high risk of wildfire throughout the Deeth/Starr Valley
area. David Stanton stated they fail to mention that the Deeth/Starr Valley area
has a lower wildfire risk rating in that report than much of Elko County. He stated
that study only indicated four low hazard communities: Jackpot, Montello, Wells
and West Wendover. David Stanton stated the appellants also failed to mention
that in Appendix B to the RCI report was a community rating system based on a
point system. He stated the vast majority of the communities in Elko County had a
rating of 3 for ingress or egress meaning they have only one access road in and
out of the community. David Stanton stated that the vast majority of the
communities were surveyed in that report and only a few urbanized areas had
been rated 1 on their ingress and egress which meant they had separate roads
leading in and out of the community. David Stanton stated they were talking about
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the development of 21 parcels which was not an urbanized area. He stated the
County had addressed enumerable health, safety, and welfare issues and other
issues extensively throughout this process sometimes at great financial costs to
the Currivans. He stated as a result, this Commission and recently the Planning
Commission had indicated a clear understanding that the Currivans have a legal
right to develop a portion of their land into large parcels pursuant to state law and
pursuant to the Elko County Code. David Stanton stated that this Commission
would have not approved the tentative map if they truly believed there were
health, safety and welfare issues that provided a legal base for not letting this
division of land proceed. He noted this secondary access issue was discussed
extensively at that stage.
He stated this Commission and the Planning
Commission have considered all of the same health, safety and welfare issues
that the appellants were raising now, including the secondary access and decided
that the Currivans were entitled to proceed with the division of land that they were
requesting. The Currivans have done what the County had asked them to do,
what various regulatory agencies have asked them to do, and significantly what
state law required them to do. David Stanton stated the Currivans had agreed to
additional conditions imposed by the County which may technically not be
required by law but they agreed to them anyway but that will never be enough for
the opponents of this development. He stated last year they were before this
Commission twice on the Currivans’ tentative map. The Commission decided to
approve the tentative map. David Stanton stated had this Commission decided
that the tentative map should not happen and there was a legal basis for making
such a decision; they would have done it at that stage. He stated that the
appellants have acknowledged this process was governed by NRS 278.472 with
the respect to approval of the final map. He stated that if the criteria was set out in
that NRS then the final map for the division of land into large parcels must be
approved. David Stanton stated that had been done and now it was time to bring
the process to an end. He stated as of today the Currivans have been at five
hearings before the County for the proposed division for 21 parcels. David
Stanton inquired what would happen if this final map was not approved. He
inquired what happened if this Commission sent this map back to the Planning
Commission. He asked if new requirements would keep getting imposed over and
over again so that this development perpetually remains somewhere between the
Planning Commission and the County Commission. David Stanton stated the
Currivans have already met all the conditions that the State imposed and the Elko
County Code imposes and have agreed to comply to all the conditions imposed by
the County. David Stanton stated that even if the Currivans were to meet all the
new requirements the opponents of this project were asking for, did they really
believe that the opponents of this project would say okay the Currivans have
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fulfilled the requirements so we are happy with that. He stated they would not give
up unless they were successful in preventing the project altogether. He stated
that was what they want and have made that abundantly clear throughout the
process. David Stanton asked this Commission not to allow some of the
Currivans’ neighbors to use this process to keep the Currivans from doing what
they have a legal right to do. He stated the Currivans have passed through a
gauntlet that has been laid out by some of their neighbors that were opposed to
this project and it was time to put an end to this process. David Stanton stated
that Commissioner Russell voted in favor of the tentative map and had made this
statement: “Some of them may want to change their mind about being a rancher
in the future and want to develop their property. At that time, they would not want
the rules to be applied differently to them than to anybody else. Therefore, there
should be equity and justice while applying the rules. The Board has to be fair,
according to the law, to every single person and cannot pick and chose whether it
was a popular or an unpopular decision.” David Stanton asked the Commission to
reaffirm the Planning Commissions’ decision to approve James and Theresa
Currivan’s final map.
Commissioner Eklund-Brown inquired about the encroachment issue and
asked how they would plan to rectify that other than with the trade-off of land.
David Stanton stated it was his understanding that the only impediment to
removing the encroachment has been waived. He stated as soon as the weather
has improved, Richard Katsma would remove the overburden and it would not
affect the road at all. Commissioner Eklund-Brown noted that as steep as it was
on that toe, maybe Chris Woster could probably address the stabilization on that
slope. She noted that the road was not stable at this point in time just based on
the erosion and the aspects on the outside. David Stanton stated he did not know
what would have to be done to the road. He stated that on the encroachment
issue it was one of the conditions for the approval of the final map. Commissioner
Eklund-Brown asked where the corner was with the encroachment slope. Chris
Woster submitted a diagram. Chris Woster noted that right now there were some
gross presumptions being made by the appellants in this case. Chris Woster
stated they did not deny that the toe of that slope was on their land. He stated the
question was which survey should they use? He stated there was a deed survey
where they use the fence lines of occupation. Chris Woster stated they went in
and surveyed under Orange Book standard by tying the four corners together and
they arrived at a different corridor of who owns what. Chris Woster noted that if
the Jones obtained the land that they say was being encroached upon now; then
by the very same acknowledgment that says that if they were going to use that
survey; it took away land running north/south of that position. He stated they
stood to lose land. He noted that if they were to deed over to the Currivans it
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would be .26 acres. He stated that if they were willing to accept what the
Currivans would deed over they stand to receive .36 acres so they gain acreage.
He stated they had proposed that but a judge would decide upon that.
Commissioner Eklund-Brown asked if this final map was correct. She stated that
it did not appear to be. Chris Woster stated it was correct as presented. He noted
that only a Judge had the right to go in there and say that fence line takes
precedence over the legal land survey system. Chris Woster stated that they
would not know what the actual boundary line was until that lawsuit was over. He
stated they would move the road and get the encroachment off which meant they
would have to move the inside of the road into the bank a little further. He stated
the Currivans had already committed to doing that. Chris Woster stated they had
hoped to do a land swap. Commissioner Ellison noted that if this was approved
today as it was submitted and it did go forward with the 21 lots, would the road
stay the exact same as it was with no restrictions. Chris Woster replied yes, with
the boundaries drawn as legal standing. He stated whether a Judge wants to go
back and cite fence lines that would be the Judge’s decision. Chris Woster stated
they could mitigate from that going there. Commissioner Eklund-Brown inquired
about the secondary access proposed by Shanks Engineering. Chris Woster
stated he did not know anything about a proposed secondary access. He asked if
that was proposed across Marty Hoots land. Commissioner Eklund-Brown noted
they were not proposing the access across Marty Hoots land. She showed Chris
Woster a copy of the map and commented upon the steep topography. Chris
Woster noted that there was a 250 feet deep raven so there would have to be
bridge similar to the one south of Hoover Dam. Chris Woster noted that there
were comments made that the road would be impassible for 3 or 4 months. He
noted that it was already known that this would be addressed by a Homeowners’
Association so the people would have the capability to do what it takes to get the
snow off the road. Chris Woster stated that in the meantime the Currivans had the
equipment, the means and the ability to take care of that. Chris Woster stated that
Mr. Howell had commented that this would set a precedent. Chris Woster stated
that the precedent they would be setting was that if they abide by the laws in NRS
and the County Code and they do what they were told; they meet with staff and
comply with the recommendations; deal with the Army Corp and NDEP then they
were supposed to get approval. He stated that if that was precedence, then he
did not think that was a negative term because they were doing what they were
asked and what they were told to do. Chris Woster stated they had the permits in
hand to address those. He noted that there was talk about a bottleneck at the
bridge. He stated that they arrived at the width of that bridge after they met with
the Elko County Planning and Zoning Director and Otis Tipton. He stated that
there was a wider bridge down by Jiggs which had public monies that built it but it
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did not have any more negative effects than any other areas that had five, six or
fifteen units or more based upon which route you take. Chris Woster stated that
they used due diligence on the bridge design. The bridge was designed, stamped
and submitted and was always available for anyone to look at. He stated George
Lostra had his stamp on it. Chris Woster stated he would not tell the Commission
or Randy Brown what their job was. He stated that he had been doing this for a
long period of time and when he met with staff, and they told them the agencies
they have used and here is the input they solicited for the infrastructure involved;
then the agencies come up with a check list. He stated they circulate that check
list around and when that comes back; then Randy and staff puts that into the
documents and it comes forward so they can address those things. He noted that
it touched on the second fire access. Chris Woster stated they had received the
letter that was responded to by the Northeastern Nevada Firefighters Association
because that was one of the agencies the Planning and Zoning Director had
solicited input from. He noted that the Currivans have committed to making the
recommendations to whatever extent they were listed on here, and they would
make the covenants and restrictions part of the subdivision. He stated the
Currivans have done what the staff has requested them to do. Chris Woster noted
that Mr. Turk’s letter speaks about a secondary access. He stated that if they
went to a Western U.S. Regional Fire Group they might have a slightly different
regulation. However, they had to abide by what Randy Brown solicited and
wanted them to respond to. Chris Woster inquired about modification of plans
without being on Randy’s checklist. He noted that there were conversations about
clays, silt and instability. He stated that was why they asked NDEP to get involved
with the construction of the road to deal with the slope and the erosion of the road
that always takes place until vegetation grows. He suggested that they send their
report down to NDEP because NDEP came out and viewed the road. Chris
Woster stated that NDEP was a third party that did not have an interest in it. He
stated they use best management practice and they would use the same
requirements on the cul-de-sac on top. He stated at the previous meeting he had
made the statement that they could microscopically look at any road and this road
was safer than the road to Angel Lake. He noted that road had no guardrails and
was an NDOT road. He asked Randy Brown to meet him but Randy took a
professional stance that he would not go out there until they have to deal with
those issues. He stated they do whatever Randy says or whatever a person that
Randy hires says to address that road. Chris Woster noted that snow and
guardrails fell outside of the requirements. He stated that they had met with staff
and the agencies and they were happy with that. He noted that the fire issue had
been discussed a lot. Chris Woster stated that Resource Concepts Inc. presented
a document which the appellants brought in before. He stated that there were
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some very objective ways to look at this. He noted that anyone could assign
values and come up with the fire rating an area has because of location, distance
from water, etc. Chris Woster stated that they could rate the subdivision with the
score sheet on page three which summarized the community hazard. He stated
that when it was all done there would be a higher, safer reading than the Starr
Valley using the same score sheet. He noted on sheet six it gave a rating system
to use. Chris Woster stated when they have the recommendations put in place by
the Northeastern Nevada Firefighter’s Association; all the street signs go in, etc.,
they end up with a 53 fire hazard rating compared to the 62 rating for the
Deeth/Starr Valley area. He explained the 40 acre lots would give them a better
rating through the elements, the street addresses, etc. Commissioner EklundBrown inquired if they had looked at green stripping along the border of the Forest
Service. Chris Woster stated that if they were going to do that; they would sit
down with the document from the Northeastern Nevada Firefighter’s Association.
He stated that some people have asked why they haven’t done more. He noted
that there would be no CC&Rs until after approval of the final map. Chris Woster
stated microscopically they may find an area in the road only at 26 or 27 feet wide
but that was the purpose of the Homeowner’s Association. He submitted photos
of the road taken last fall. Commissioner Russell inquired about Chris Woster’s
qualifications for the testimony he just gave. Chris Woster stated he was here as
a professional engineer on the road dispute and here as a legal land surveyor on
the planning issues. Commissioner Russell inquired if he was qualified on the fire
issues and received a negative response.
Commissioner Eklund-Brown inquired if a bridge had to have railing on the
side, legally. Chris Woster stated he did not know of any jurisdiction or regulation
on a bridge out there in the middle of an alternate compliance roadway. He had
used other rural bridges that Elko County constructed for an example.
Commissioner Eklund-Brown noted that in Jarbidge they had guardrails. Chris
Woster stated he did not know what controlled that. He wanted to find out how
other public bridges were constructed in Elko County. Chris Woster stated they did
put a 6 inch barrier along the edge. Commissioner Eklund-Brown stated that was
because Elko County did not have codes for bridge construction. Chris Woster
stated that as it deals with the alternate compliance, that’s a more slippery area to
deal with. Commissioner Eklund-Brown commented that would be handled by
NDEP. Chris Woster stated they had to deal with the structure of height, the
height above free water and those types of elements. He noted once they cleared
that span then they have to make sure they met H20 loading. Commissioner
Myers noted that would support a fire truck and an ambulance. Commissioner
Ellison inquired if Chris Woster designed the road. Chris Woster replied no, the
Currivans built that road. They had obtained a contractor and pioneered the road
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as it was done back in the original road building days. Chris Woster stated that
there was no design by their office. Commissioner Ellison noted that was why the
request for plans to be submitted was never shared because there were no plans.
He did not know of any set of plans that could be shared with them.
Commissioner Ellison commented about the two different sets of pictures. He
noted the amount of information given to them from both sides and he did not feel
he could review all this information in two days. Chris Woster stated that was why
he spoke to Randy Brown and staff to comply. Commissioner Ellison noted that
looking at these slopes in the pictures and knowing the terrain up there; if they
sold 21 parcels and those people tried to make that a permanent residence it
would be almost impossible for them to get in and out of there in the winter. Chris
Woster stated he had driven that road every month of the last year and a half. He
stated that the road was tipped to the inside so you don’t have to drive to the
outside. He stated that there were a whole series of things done during the
construction. Chris Woster did not believe they have time to review everything.
He believed that when they were done Randy Brown would either go with this or
hire a consultant and it would be hammered out. Commissioner Ellison inquired
why this was not done ahead of time. Commissioner Eklund-Brown noted that the
developer would not want to put out all of the costs out on the roads until it was
approved for development. Commissioner Ellison felt that they should look at the
roads first before development. He felt there was a safety problem and felt it
would come back on the County. Commissioner Eklund-Brown noted that there
needed to be precedence to substantiate these requests. Chris Woster asked if
they were talking about fire or road safety. Commissioner Ellison replied with the
road. Chris Woster asked that they move this forward so he could work with staff.
He noted that the road was not even supposed to be there right now.
Commissioner Ellison believed that most of the residents’ complaints on both
sides were based upon the road. He believed the fire issue would play a major
part but noted that 90% of the testimony was based on roads. Chris Woster
stated he would challenge anyone that said the roads were not passable. He
stated that there was an avenue established by County Ordinance that says to get
out there with the people who were objective to get the answer. Chris Woster
stated that if they get the map done then the road would be in. He stated they
could not do anything until Randy Brown or his consultant stated they were happy.
Jill Oswalt stated that she would like to rebut testimony from Mr. Stanton and
Mr. Woster. She stated that she lived in Starr Valley and was a next door
neighbor to the Currivans. She stated that the road to their division of lands
crossed her property several times. Jill Oswalt referred to a letter from Randy
Brown to the Currivans dated August 11, 2005 (Section 9 of the appellants’
packet). She noted that Item 4 of the letter spoke about maintaining or improving
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the ditches and their elevations. She commented that as of today her ditches
were ruined. Jill Oswalt clarified that this was in Phase 1 and not Phase 2. She
noted that Item 5 required that “No Outlet” signs be in place. She stated they do
not exist as of this day. Jill Oswalt stated under items 1, a safe haven turnaround
was required at the westerly boundary of proposed Parcel 1. She noted there was
no safe turnaround in Parcel 1 whatsoever. Jill Oswalt stated in Section 9 there
was a letter dated July 19, 2006 from Randy Brown to Mr. Currivan saying that he
had inspected the roadway and found some deficiencies. She noted that
cattleguards were not placed and their land was open to the State Highway for
months and as a result they sold their small cow/calf herd down to cattle that they
could easily contain to land that they could graze. Jill Oswalt stated that the
fences of the neighbors were never repaired and their fences have never been
repaired. She reported that the fence that was put in between her and Grant
Gerber’s property did not have any side pass gate so no one could move livestock
down this road. Jill Oswalt commented that these were requirements that had to
be done. She commented that to this day no riprap had been placed below the
culverts discharging the surcharge water onto her land. Jill Oswalt stated that the
construction damage to this date had not been mitigated. She asked that they
look at the pictures in Section 9 where they will see the steep slopes and the crack
in the land. She stated that her irrigation ditch which could barely control the flood
runoff from Parcel 1 was reduced to two small six inch pipes. Jill Oswalt
commented that Grant Gerber had testified about an enormous slide that had
occurred there before. She stated that in the years that she had been in Starr
Valley; further up on Grant Gerber’s land adjoining Currivan’s land that slope had
slid multiple times. She commented that Mr. Currivan had sent them a letter
demanding that they repair it. With the construction of the new road cutting further
back into the hill, that would make it steeper; she felt that it would be impossible
for her at this time to take equipment safely on that ditch at all because it is all
going to slide. Jill Oswalt stated in letter dated 7/19/06 addressed to Mr. Currivan
from Randy Brown stated that the ditch crossing had not been repaired, the
fencing had not been closed and the crossing had not been repaired. Jill Oswalt
noted that Mr. Currivan responded the same day 7/19/06 saying that the
cattleguards would be placed, the fencing would be repaired and the culverts
would be repaired to prevent the surcharge water from destroying their land. She
noted that Mr. Currivan stated that they could take this letter as his word that this
work would be done. Jill Oswalt commented that there was another letter from
High Mark Construction LLC basically stating the same thing. She stated that
none of this work was ever done. Jill Oswalt reported that there was a letter dated
March 3, 2008, to Mr. Brown from Georgia Black. She stated Georgia Black
asked for the inspection after the time Randy Brown had submitted his
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requirements to the Currivans. Jill Oswalt presumed that was never done as there
was no report submitted and much of the work was never done. Jill Oswalt
commented that to say that the Currivans kept their word; that they just need to
get with Randy Brown and mitigate all these things; these things have not been
done at all as pointed out in these pictures. She stressed that this road was
dangerous and she could not count on just Randy Brown and his staff; that she
was sure was overwhelmed to report back to you that something needs to be
done. She stated that no inspection has been done, much less the work.
Commissioner Eklund-Brown inquired when the pictures were taken (Section 9).
Jill Oswalt stated the first pictures behind Tab 9 showed the roadway on her
property with a large crack where it had sloughed down on her irrigation ditch.
She commented that the irrigation ditch was ruined at this point because of the
sloughing and there was no way to maintain it. Jill Oswalt stated the second
picture was the small culverts that she was to do flood control with. She stated
the third picture was taken this winter with Mike’s twelve year old son who was a
little guy standing between the road and the fence. Jill Oswalt stated that the
Currivans maintain that the fence can contain livestock. She stated that the
upside of the road contained the majority of her land that she could use for grazing
and the downhill side was a small pasture that they do some irrigating on. She
noted the downhill side probably would contain an animal but for the topside the
fence was two wires. She stated that the shoulders were soft. Last summer she
was driving her 6 wheeler, got over on the soft shoulder and rolled into this very
fence. She stated that it did not tip enough for the fence post to fall down. Jill
Oswalt stated the fourth picture would show them the condition of the land in a
place where it was not very steep and there were other pictures that showed that it
was nearly a vertical grade across her property. She stated there was an Order
from the Nevada Department of Conservation In the Matter of the Ackler
Creek/Currivan that said by May 18, 2007, the Currivans should submit a plan
saying that they would have the work completed by July 31, 2007. Jill Oswalt
stated that under (b) it stated that “Erosion control and stabilization throughout the
entire area impacted by the graded road.” Jill Oswalt stated that her steep vertical
slopes remain un-mitigated to this day and nothing was done. She commented
that they could see that the Currivans do not follow the orders yet the map
seemed to slide through anyway. She hoped they could help them.
Paul Bottari, a resident of Starr Valley, stated he had been involved with
ranching and farming all of his life. He stated that there would be impacts. He
understood the importance of private property rights and stood up for private
property rights. He noted it was a tough decision for him to stand in front of a
group of his peers and support the map for the Currivans in the division of land
into large parcels. Paul Bottari stated the reason he encouraged that they do that
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was the law, the way he interpreted it, says the division of land into large parcels
act was passed in 1979. He stated there was a lot of discussion in and within the
committee on that act. He noted their decision was that they have a provision to
create large parcels that were outside of the subdivision requirements. Paul
Bottari stated part of that discussion was the disclosure that any party prior to
signing a final agreement, have to sign an agreement that they knew the County
may require services for fire protection. He noted that legislation was amended in
1993 by AB 177. He noted that disclosure was still law and it was the intent that
people buying parcels were buying this with full knowledge that the government
would not provide those services. Paul Bottari stated that when the people came
to the Commission asking for services then they could tell them that they signed a
disclosure when they bought the land that no services would be provided. He
believed that the people needed to have some responsibility and they don’t need
more government. He spoke upon infringement on property rights and private
rights by the government. He noted that they could not sell a piece of property out
there without putting a county road to each piece of property. Paul Bottari noted
the amended legislation 1993 included a provision that if there were 16 lots or
more then the County could impose a requirement for roads for emergency
vehicle access. Paul Bottari stated that most of the provisions were still in place in
the law. Paul Bottari felt the road was good but he was not living below it and
worrying about it sloughing in on him. He stated these people had the zoning in
place and the legal easement in place which was required by the division of land
into larger parcels. He stated it was important to have legal access to the
property. He noted they met most of their conditions and asked the Commission
to support the Currivan request. He stated that the Commission should consider if
they were setting precedence. Paul Bottari stated that he did not want them to
impose the same requirements on him. He stated his family was third generation
ranchers but they were losing a lease on a ranch they had for over thirty years.
He noted that they may have the need to sell some of their land so he wanted the
opportunity to do that without putting in County roads, if he doesn’t have to. He
encouraged their support for the Currivans and felt they had met the requirements
required by law for division of land into large parcels.
Commissioner Ellison noted that several years ago new people come into
the subdivisions and started attacking the Open Range Laws. He noted that the
people had signed the agreement that they would fence to keep the cows out.
Commissioner Ellison noted that these people are submitting laws because of this
law. He watched a City get sued and a large developer lose everything he owned
in Sparks because the people moved in around him and filed suit against him over
dust. Commissioner Ellison commented that when he heard 21 more people
would be moving into this area he thought of what happened at Ryndon and
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Osino. He reported upon all the calls they received this winter for snow removal.
Paul Bottari noted those people did not sign a disclosure when they bought that
property. He felt that these disclosures should be put on the parcel map in bold
print so the people would be aware of the disclosures. He did not want the
fencing for the division of land into large parcels so that the cattle can graze
around the house which was good fire protection. He noted if they require fencing
then some of the people may not have livestock and that would create a fire
hazard. Commissioner Russell noted that property does not have rights.
Individuals have rights and the sovereignty is the individual. Therefore, because
you are a sovereign individual you had a right to property.
Jonathan Dahl, Starr Valley rancher, noted that David Stanton read
previously minutes containing Warren Russell’s comments stating that some of
the people may want the law to be in their benefit when they do not have any
place to go. He stated that soon his father would retire and he would be taking
over the family ranch. He noted that ranch had been in their family for over three
generations and he would not sell the ranch. He commented that every family in
that community did not want to sell their ranch into large parcels. He stated that
he had always wanted to be a rancher. Jonathan Dahl noted that Mr. Shanks had
stated that 16 parcels or more required a secondary access and reviewed a
portion of the Shanks Engineering report: “...these thresholds apply to
subdivisions, it seems reasonable to use the same standards in establishing
thresholds for a division of large parcels”. Jonathan Dahl stated that 21 parcels
plus the three that had already been passed made it 24 parcels. He stated it was
8 more parcels above the standard for a subdivision. He felt that there needed to
be a secondary access under the general health, safety and welfare. Jonathan
Dahl commented that under NRS 278.020 it contained a word “morals”. Jonathan
Dahl believed that morals fell under how they care about other people. He stated
that if there was only a single access then apparently they didn’t care about who
they would sell it to. He believed the Commission was to address the morals. He
believed they had the spirit to say no but was bound by law to say yes. Jonathan
Dahl stated under morals the Commission had the right to disapprove this map.
Carolee Jones stated that Paul Bottari was not part of their committee and
should not be considered under their time for rebuttal.
James Copenhaver commented that there was a statement made that the
Commission did not have the right to look at each thing. He did not believe that
was the case. He stated the Nevada Supreme Court said, with regards to zoning,
health, safety, morals and the general welfare of the citizens according to NRS
278.020 was sufficient evidence for the Commission in Douglas County to make
their decision. He did not feel they were making precedence. He believed they
should make sure that their decision was based upon the general health, safety
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and welfare of the community. James Copenhaver believed that Commissioner
Nannini in April stated it very well when he said: “they have no control over what
happened in the past; their forefathers made those decisions but public safety
was an important issue and that this Board had tried to correct those mistakes of
the past.” James Copenhaver noted that Commissioner Nannini continued to say:
“He stated they can’t continue to go with the past. They have to go with the future
and that was why he would like to see them available to accommodate people
when they have crimes, accidents, etc....that just because it was done in the past
does not mean they can’t make it better.” James Copenhaver noted that
Commissioner Nannini wanted to make the road passable today and for the
future. He commented that Commissioner Nannini had stated that it was not an
all around weather road and he felt that road would only be available for a few
months of the year or four to five months. James Copenhaver believed
Commissioner Nannini was making the point that with health, safety and welfare
you need to look further than just some black and white statute in regards to a
personal behalf. If that was what the legislature intended when they gave them
the authority to protect the health, safety and welfare then the legislature would
have said so. James Copenhaver did not think they could shirk that responsibility
by saying that as long as they satisfy the requirements of the map then that was
all they would need to look at. In addition, the Currivans have said they would do
anything that Randy wants. He stated that Randy does not have any authority to
impose health, safety and welfare provisions; that was this Commission’s
responsibility. He commented that Randy always sees that the technical things
were taken care of but the things outside of that was the Commissioners’
responsibility.
Debora Frazier objected and felt they should have the last say. She read
Elko County Code 4-9-10: “At the appeal hearing, the appellant shall be heard
first and shall present his reasons for the appeal. The respondent may respond to
appellant’s appeal after which the appellant may present any rebuttal argument”.
Mrs. Frazier inquired how many times they were going to go back and forth.
David Stanton stated he was responding to new issues.
Commissioner Myers commented that Paul Bottari was not a member of the
appellant. He stated that there would be public comment at the end of both
groups’ remarks. Commissioner Myers believed that would give everybody the
opportunity to submit their comments to the Board. Kristin McQueary stated the
Appellants had the burden of proof and traditionally they had the last word.
David Stanton noted there were new issues presented. He understood that
the decision would not be made at this meeting. Commissioner Myers stated that
had not been determined yet. David Stanton stated that if that was the case, he
asked that the evidence be closed so there was no new evidence submitted that
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they did not have a chance to respond to. David Stanton commented that there
were new issues brought up and some of these issues pertain to a parcel map
that was approved several years ago. He stated that allegations were made that
the Currivans had not complied with certain requirements and the Currivans
strongly disagree with that. He stated Mr. Currivan would like to come up after he
testifies to address some of those new issues brought up on rebuttal. David
Stanton stated, as he mentioned before, the ditch issue was subject of litigation.
He stated they disagreed on that matter. Commissioner Ellison inquired if that
was settled. David Stanton stated that there was a Court decision. Jill Oswalt
stated she had to maintain the ditch to her property line. David Stanton stated that
was a maintenance requirement. David Stanton commented that previously they
presented the Board with a letter from Kirk Owsley saying that the pipeline that Dr.
Oswalt had installed in that ditch was sufficient to satisfy her water rights. David
Stanton noted that was discussed extensively during the tentative map process.
He stated regardless of the outcome of that issue or whether they agree; that was
not an issue that had anything to do with approving this final map for the division
of land into larger parcels. He stated this ditch was in a different area and was not
in the division area. David Stanton noted in terms of the boundary line issue; what
the statute requires was that the final map be based upon an actual survey and
shall show the day of the survey and contain the certificate of surveyor. He noted
that had been done and that map showed the boundary which was surveyed by a
professional surveyor. He noted that the map complied with the statute. He
stated that with respect to some kind of boundary line dispute did not provide a
basis for non approval of the final map. David Stanton noted that there had been
a lot of talk about roads and the condition of the roads which was wonderful, but
these roads did not even have to exist. David Stanton commented that the roads
just needed to be shown on the map. He stated whether the roads were nice or
not was not relevant with regards to the approval of this final map.
Jim Currivan stated there were quite a few accusations made. He stated all
of those items on the parcel map were taken care of or Randy Brown would have
been after him. He stated that he had taken care of them all. He commented that
Mr. Katsma was also involved with that. He noted in addition to that NDEP came
out there and they had given them the buy off because the best management
practices were put in place. Jim Currivan stated he was not aware they needed a
permit from NDEP to build that road. He stated he learned a lot after that. Mr.
Currivan stated they did everything they asked. They put riprap where they
asked; they did more than what they asked. He stated they lined the intake with
riprap for the culverts with riprap on the downhill side. He took exception with the
way words were twisted and time was taken out of place. Jim Currivan stated he
noticed in other testimony given by Jill Oswalt that she said three or four times she
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had to close gates because her horses would not stay off of the highway. He said
that she was not telling them that 75 to 100 feet away was a cattle guard so they
could not go past that. He stated that kind of deception could get someone upset.
Jim Currivan noted the comments on the sloughing of the roads even though they
did not have to be on the map other than for the location. He believed that
Richard Katsma answered that quite adequately in his testimony which was in
their packet they received wherein he told them that those were taken care of. Mr.
Currivan stated he knew there were some serious crevices but those had been
taken care of and Mr. Katsma had explained that was a natural thing.
Carolee Jones stated she would have to set straight a couple of
misconceptions that were perpetuated by Mr. Stanton and Mr. Woster. She said
there was not a boundary dispute on the map and referred to Section 10 of their
packet where the yellow portion was on the map. She stated that was drawn
correctly on the map and that was their property line and the Currivans have
encroached upon it. She stated it was not a dispute. Carolee Jones stated that if
anything was of dispute it was explained in the letter to Mr. Brown on the next
page in the same section. She stated if anything was in dispute would be the
purple area; that in which their deeds have a problem and a judge would handle
that. She agreed wholeheartedly that they don’t need more government. They
simply were asking them to enforce the rules that were already there: health,
safety and welfare. Carolee Jones stated she had come to the conclusion through
all of these meeting processes that the problem with health, safety and welfare
and morals, as they read it in the County Code, was they did not have a color;
they did not have a weight, a height or a width. They can’t measure them or put a
number on them. So where do they go from here? Carolee Jones stated they
would not be standing here if they could measure health, safety and welfare. So,
why was the government here? Why were we here? Carolee Jones stated the
Commission was here to protect the property rights of all of them and to make
sure that it was all done properly for of all of us; not just for her, not just for Jill
Oswalt, not just for the Gerbers but for the Currivans as well. Carolee Jones
stated they were all standing here putting their faith in them to enforce proper
regulations to ensure their health, safety and welfare. She resented Mr. Stanton
saying that he knows what she thinks and knows what she wants. She inquired
how he could possibly know because he had never asked her. Carolee Jones
noted that the Currivans had never asked her. She stated that maybe if they had
they would not be here today but Mr. Stanton needs to stop saying he knows her
thoughts, her wants and knows that she was hurt because he does not know.
Carolee Jones stated her final point was the issue that Jill Oswalt brought up
regarding Phase I of this project. She asked that they check the facts, check the
materials they gave them because there were items on there that were not
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finished. She asked how can you finish step two when you cannot finish step one.
Carolee Jones stated that with a little bit of time and research this would be very
clear.
Commissioner Myers closed the public hearing portion of the hearing.
GENERAL PUBLIC COMMENT:
Milt Grisham, member of the Elko Planning Commission, stated that he
voted against this. He stated his prime reasons were: 1) it was mandated by the
County Code that they have a 26 feet wide road but they have a 14 feet bridge.
He stated that if they were willing to build the 26 feet wide road why have a choke
point to 14 feet. He noted the bridge was wooden on steel girders, and if that was
destroyed there would be no other access. He failed to see the common sense or
the legality of it. 2) Secondary Access: They would not need a secondary access
unless someone broke one of the pieces of the property into ten acre parcels. But
by the same token, if they did that, they were not supposed to do it, and it says
they cannot break it into more than 40 acres parcels; then there would have to be
a secondary access. He stated that his question was at that time: “If there had to
be a secondary access at a later date because someone wants to break up their
40 acres up, who pays for that access? Does the original developer pay for it?”
He stated the answer came back no, it would be upon the property owner or the
particular person who wanted to break up that property. 3) Health, Safety and
Welfare: Milt Grisham stated that with all the years he had been on the planning
board this was his criteria. He stated they have a fire prone area. They have a
large piece of property which was plush with grass with no secondary access and
they have a 14 feet choke line. He stated he could not understand that. He stated
these were the main reasons that he voted against it. Milt Grisham stated that if
the Currivans had met all those requirements he would have no reason to say no
because it was their property and they have the right to do with it with reason
because of the general health, safety and welfare. He noted that when it really
came down to it that was part of the conditions. If one person came in for a
zoning change to get a ten acre parcel then immediately it became necessary to
have a secondary access. Milt Grisham stated that they should have secondary
access no matter what.
Commissioner Myers closed the public hearing. He asked that the
Commissioners direct all of their questions to staff that they may have.
Commissioner Russell had a request. He saw different points of view on a
number of issues. He stated there was one issue that he was not satisfied and he
had insufficient information to make a decision at this point. He stated that issue
was the issue of a secondary access because of fire problems. He requested that
Mr. Turk, as a third party, from the Nevada Division of Forestry; if he would be
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willing to do a report on fire safety relating to that particular subdivision to come
back with technical details with his experience and observations. Mr. Russell
stated that Tom Turk had no money invested and he was not a resident of that
area. He requested that Tom Turk come back with an evaluation. He
acknowledged that Tom Turk wrote a letter but would ask for an objective report
on that division because that would give him something to look at in his
deliberation to reach a conclusion.
Tom Turk stated that he would like to clarify direction if he may. For the
record, the letter that was drafted for today was done on part of the Elko County
Fire Marshal, Pete Anderson, who also was the State Forester and State Fire
Marshall. He clarified that he was still representing, as the County Department
Head, their Fire Marshall with their Building Department. He asked Commissioner
Russell if he had a timeframe for his response.
Commissioner Eklund-Brown noted this letter only addressed Elko County
and there were sixteen other counties. She would like to see how many times this
was enforced on the basis of RCI anywhere else in the state. She would like to
see the precedence here because they have not heard anything other than what
you have been involved in from the state office, which did not provide comments
until the untimely eleventh hour. Commissioner Eklund-Brown stated that
because of this situation it looked very politically driven and she would like to
make sure it was not a precedence situation. She noted that they have had high,
extreme and moderate fire risks’ area development. They have had parcels maps
and some divisions of land into large parcels come forward in the extreme areas
with no response from NDF. She took exception to the lateness of this and would
have not had any opposition to it if it had come in, in a timely manner. She did not
appreciate the fact that it was coming in at this point and time. Commissioner
Eklund-Brown noted the situation had gone on for a number of years and if
offended her that this came in at this point. She inquired if he would be at all of
the meetings on all these parcel maps. She stated if it would set precedence on
this one then they better require it on everybody else. Commissioner EklundBrown felt that was a high prone fire area and they had all been out there. She
noted they were very conscious of the million acres in 2006 and this last year
600,000 acres have gone up in flames. She stated they knew that any area in this
County could go up in flames. Commissioner Eklund-Brown did not think this RCI
study was to supersede state law or micromanage County Commissioners.
Commissioner Eklund-Brown felt it was to set up Fire Safe Council Chapters and
do green strips around communities. She did not believe it was to enforce action
where it was not warranted under state law. She stated that if they start taking
recommendations from them and making law out of something that was not; that
made her uncomfortable. She wanted to see consistency from local and state.
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Commissioner Eklund-Brown stated they appreciated NDF and knew they wanted
it to be safe. She felt that they should not enforce it in one case.
Unidentified man stated Commissioner Eklund-Brown should be recused
too. Commissioner Myers stated that she refused to be Chairman. Commissioner
Eklund-Brown noted that Commissioner Nannini had a conflict of interest.
Commissioner Myers asked that this Commission not remand this back to
the Planning Commission. He noted that there were numerous documents
submitted today. He did not believe that the Commission could digest all of the
information given to them. Commissioner Myers felt that both parties did a good
job of relaying their specific stances to the Board. He appreciated both sides
being honest and forthright. Commissioner Myers reviewed the evidence
submitted today: a letter from NDF stating that there may be a possibility of a
second access recommendation, a Fax from NDF talking about the Chapter and
verse that was from; a letter from David Stanton on March 5, 2008; an e-mail from
Paul Bottari which was sent on March 5, 2008 but just received this morning;
Shanks Engineering Report that was 22 pages thick; submittal by Mr.
Copenhaver; a binder submitted that the Commission should review; Isla Verde
International Holdings v City of Camas, Washington brief; RCI Hazard
Assessment; pictures from Chris Woster on the road, etc. Commissioner Myers
felt that was a lot of information to digest to make a decision that would impact a
lot of people.
Commissioner Ellison noted that he had friends on each side of isle and
inquired if Mr. Stanton and Mr. Gerber could address the roadway problem. He
noted it would impact the road by at least 40 trips a day if approved. He did not
want to see this come back but they could not digest all this information and his
decision may be different later when he had time to review all the material.
Commissioner Ellison stated he would like to see these individuals work out
something with this road.
Commissioner Myers stated that if they decided not to take action on this
item then he would ask for a motion that evidence be closed. Commissioner
Russell inquired if that would include the request for information from the NDF
staff. Commissioner Myers stated that his position was any commissioner could
ask for information but he would not take any more testimony.
MOTION: Commissioner Russell moved to defer deliberation and
decision to the next date that they decide for this particular
issue because of the volume of the material that they need
to review and to deliberate over.
Commissioner Russell suggested they set a date in a different motion.
Kristin McQueary asked Mr. Russell to also exclude the request for
information that the Board made as part of his motion.
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MOTION: Commissioner Russell amended his motion to exclude the
information that the Board might make to clarify their
decision. Commissioner Ellison seconded the motion.
Commissioner Myers inquired if he wanted to set a date in his motion.
Commissioner Russell stated they could set a date in another motion.
Commissioner Myers restated the motion. He noted the Commission had the
liberty of contacting the parties if they required more information.
The motion was passed by majority vote. Commissioner
Nannini abstained from voting.
Kristin McQueary suggested they make a motion to close the evidence.
MOTION: Commissioner Russell moved to close the evidence
excluding information requested for clarification by the
Commission. Commissioner Ellison seconded the motion.
The motion was passed by majority vote. Commissioner
Nannini abstained from voting.
Kristin McQueary recommended that they set another meeting date because
of the Notice requirements. Robert Stokes noted their next regularly scheduled
meeting was the 19th day of March. He stated they did have a work session
scheduled on the 12th of the month but that agenda had already gone out.
MOTION: Commissioner Russell moved that they set the next meeting
with deliberation and decision on the 19th of March.
Commissioner Ellison seconded the motion.
Commissioner Myers asked if they would set a time. Robert Stokes stated
normally he would set a time after looking to see whatever else they had to deal
with on that day. He stated because there was so much interest on this issue. He
recommended that it be scheduled later in the afternoon. Commissioner Myers
inquired if it would be under the same requirements as the appeal hearings or was
it a continuation. Kristin McQueary stated this would be a continuation of this
hearing but the public comment portion was closed. She stated that if they have
further questions of either party, so everyone gets notice and the opportunity to
respond; she asked that those questions be funneled through her office so she
could send them to both parties and give staff the opportunity to see what their
questions were.
The motion was passed by majority vote. Commissioner
Nannini abstained from voting.
Commissioner Myers reiterated that on March 19th the Commission would
make a decision and advised them they would not take further testimony on that
date. He stated that there would be public comment taken. Commissioner
Eklund-Brown inquired if there was an agreement among the parties on the
encroachment would they take that to Kristin. Commissioner Myers noted they
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would give that to Kristin McQueary before it came to the Commission.
Commissioner Ellison understood the information from NDF would also go through
Kristin McQueary to go to both legal councils on a timely manner prior to the
meeting. Commissioner Myers noted that if any agreements or settlements
happen then that information needs to go to Kristin McQueary before March 19,
2008.
Mike Gerber noted he heard that the Board had the right to ask the parties
questions to get more information. Commissioner Myers stated that was correct
and that information would be relayed to both sides. Robert Stokes commented
that they have already scheduled other hearings. He would review that meeting
schedule tomorrow. He noted the agenda would be out by Friday the 14th, of
March.
Commissioner Nannini assumed control of the meeting at 5:37 p.m.
XVIII.
ADJOURNMENT
MOTION: Commissioner Ellison moved to adjourn the meeting.
Commissioner Russell seconded the motion. The
motion was passed by majority vote.
There being no further business to come before the Board, the meeting was
adjourned.
APPROVED
MIKE NANNINI, Chairman
ATTEST:
MARILYN TIPTON, Deputy Clerk
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