BUTLER COUNTY BOARD OF COMMISSIONERS

Tuesday, March 1, 2005

 

 

Commission Chairman Mike Wheeler called the Butler County Board of Commissioners to order at 9:00 a.m.  Present were Commissioner Will Carpenter, Commissioner Randy Doll, Commissioner Randy Waldorf, Commissioner Dan Woydziak, Administrator Will Johnson Jr., and Clerk Recorder Tammy Bridges.

 

ITEM #1 – RECEIVE CHUCK BOULLY, GEORGE K. BAUM TO DISCUSS STATUS OF PBC REFINANCING ISSUE

Chuck Boully, George K. Baum, came before the Board with information regarding refinancing the Public Building Commission (PBC) bonds.  Mr. Boully asked the Board for a minimum threshold that they wanted to achieve for the net present value.

 

Commissioner Woydziak motioned to lock in the issuance of net present value benefit at 3% and allow the Chair to enter into a bond agreement with George K. Baum.  Commissioner Doll seconded the motion.  Motion carried 5-0.

 

ITEM #2 – CONSIDER TABLED DECOMMISSION SURETY AGREEMENT WITH ELK RIVER, LLC

This Agenda Item was tabled in the Commission Board meeting of Tuesday, February 22, 2005. 

 

Commissioner Wheeler made a statement regarding the decommissioning security agreement.  He stated that the public comments that would be permitted would be only in regards to what is pertinent and germane to the issue of decommissioning.

 

Commissioner Wheeler asked for public comment. 

 

Larry Patton came before the Board and stated that he thought the decommissioning should include removing all of the concrete, not just 4 feet, the commission should consider significantly increasing the decommissioning amount, and inquired about the power poles being included in the agreement. 

 

Raimund Grube, PPM Energy, addressed taking down the power poles and stated that he would be okay with adding that to the scope of the decommissioning responsibility.  He stated that the poles would be taken down along the same specs as the towers.

 

Commissioner Woydziak asked about the CUP, restoration of the area, planting native grass, and removal of the roadways after decommissioning.  Administrator Johnson read the decommissioning statement in the CUP that was approved by the County Commissioners, “At the end of the project’s useful life, the equipment shall be removed from the site, the foundation shall be removed to a depth of four feet below the ground surface and the ground shall be reseeded in native grass.”

 

Commissioner Carpenter inquired about who has the ultimate say as to whether the decommissioning is finished or not.  Administrator Johnson stated that by default the County Commission is the body to sign off on decommissioning prior to releasing the funds.  Commissioner Carpenter said the County Commission should have the ultimate decision on whether the decommissioning is complete.  Administrator Johnson stated that Section 1.4 of the agreement stated Elk River would deliver documentation that has to be reasonably acceptable to the County evidencing the fulfillment of the decommissioning obligations. 

 

There was discussion with County Counsel Norm Manley regarding restoring the site back to its original condition and what the CUP requires.  Mr. Manley stated that ultimately, if the commission is not satisfied with what they have done with the decommissioning and Elk River is finished with the project, a District Court Judge would decide. 

 

Steve Trent asked the Board if the restoration included wildlife such as prairie chickens or migratory waterfowl.  Commissioner Doll stated that was a good, valid point, but there has been no discussion on that.

 

Raimund Grube stated that they have confirmed through the development and permitting process and have conducted studies and recognize buffers from the leak areas, which are prairie chicken breeding areas, and ensure that the project is set back from them.  Mr. Grube stated that there is no anticipated impact.

 

Jeff Schlichting, Elk River Wind Farm, stated that the project is subject to regulation by the feds and by the state’s U.S. Fish and Wildlife Service as well as the Kansas Department of Wildlife and Parks.  They have standards and laws and are responsible for enforcing those, not the County.

 

John Sutherland inquired about who would be responsible for the decommissioning.   Administrator Johnson stated that it would be Elk River.  Mr. Sutherland was concerned and thought PPM Energy should be responsible also.

 

John Hendricks inquired about the $3 million growing over 20 years.  Administrator Johnson stated the intent was to have $3 million at year 20.  There’s a mechanism to draw upon the $3 million.  There won’t be $3 million in cash at year 1; there will be $3 million in cash at year 20.  Elk River will start making payments to an escrow account that is backed by a letter of credit to insure that there is money in case something does happen in year 1 through 20.  The intent is to get a cash amount in year 20 of $3 million.  The money is invested as payments are made to the escrow account.

 

Tom Mack asked about a risk to landowners if the letter of credit or escrow funds are not sufficient to decommission the wind farm.  Administrator Johnson stated that yes, there is a risk to landowners and the commissioners could declare it a nuisance.

 

There was no other public comment on the decommissioning.

 

Commissioner Doll stated that there are five items that the board would like changed on this agreement:  (1) some type of language in the decommissioning agreement that indicates that $3 million is a minimum dollar amount that Butler County will have access to from day one forward, (2) a guaranteed amount of $4 million at year 30, (3) an attachment reflecting the value of year 30 and year 20 and refer to those in the original agreement, (4) some type of language stating that the scrap value goes to the County if we have to decommission, and (5) see the actual document that the bank signs off on so we can have legal counsel review it.

 

Raimund Grube discussed these items with the Board.  He stated that there would be a true up at the end of year 20 to make sure there is $3 million at that time.  Thereafter, that account would continue to grow but there would be no true up mechanism.

 

Commissioner Carpenter stated that the projections are for a 3% growth rate and he didn’t think there would be concern with not having a 3% growth rate on the money in 30 years.  Mr. Grube stated that the 20 years has been the topic of discussion and the framework for this agreement all along and the escrow agreement that we put in place does allow for these funds to grow.  Mr. Grube stated that we have, in turn, given the county some say in how those funds are invested.  Mr. Grube stated that he doesn’t want to ensure a rate of return.

 

Commissioner Doll stated that we don’t know what will happen in 20 or 30 years.  Commissioner Doll stated that he is going to do everything he can to be conservative as possible and try to represent the people who voted him into office.  He also stated that, “if I am going to error, I am definitely going to error on the side of taking care of the taxpayer of Butler County.  All we’re asking for is a guaranteed $4 million in year 30.”  Commissioner Doll stated that every scenario that has been reviewed shows this as a minimum.

 

Raimund Grube stated that he understands the concerns and that the taxpayers are the first responsibility.  He thinks they could carry out the $4 million by year 30.  There was much discussion regarding the true up at year 20 and year 30. 

 

Mr. Grube asked if these items are acceptable and can be incorporated into an agreement, do we have agreement today that this is an executable decommissioning security agreement.  Commissioners Woydziak and Wheeler stated this was the last discussion and wanted to get it done and over with.  Mr. Grube stated that he thought they could accommodate these items that Commissioner Doll discussed into the agreement.

 

Mr. Manley stated that the scrap value would go to whoever assumes responsibility for the clean up.  As long as there is no lien on the property, the scrap value would go to the county if Elk River abandoned the project.

 

Harold Cooper stated that money today isn’t worth the same as it will be in 10 years.  He stated that in 30 years $4 million would only be worth an effective value of $387,000 or $3,875 of effective money to remove each turbine.

 

Commissioner Waldorf inquired about including removing the power poles in the decommissioning.  Administrator Johnson stated that we could add that language as an amendment to the security agreement.

 

RECESS

Commissioner Wheeler recessed the Board for 5 minutes at 10:20 a.m.

 

RECONVENE

Commissioner Wheeler reconvened the Board at 10:25 a.m.

 

Commissioner Wheeler motioned to approve the decommissioning security agreement with Elk River LLC contingent on the following changes:  (1) Preamble language concerning an agreement in terms of 20 years and $3 million; (2) Eliminate schedule A and add the decommissioning schedule in the attachment; (3) Add language concerning the combination of Letter of Credit and Escrow which will total $3 million throughout years 1-20, whereas the Letter of Credit will be adjusted annually to meet the need; (4) Language will be added to the decommissioning agreement concerning removal of transmission lines; (5) There will be language added to true up the cash escrow in year 20 in the amount of $3 million and in year 30 in the amount of $4 million.  Upon review and approval of legal counsel and the County Administrator, the Chairman shall be allowed to sign and enter into the agreement on the County’s behalf.  Commissioner Woydziak seconded the motion. 

 

Commissioner Doll stated that, “although I respect Chairman Wheeler’s opinion in his opening statement, I disagree with him wholeheartedly.  The integrity of this governing body was brought into question in January 2003 when the original CUP was approved.  I have in my hand a comprehensive plan that was a result of surveys done by the people in Butler County.  The broad theme of the comprehensive plan for Butler County is to (1) preserve the rural and agricultural heritage of Butler County, (2) prevent major development where utilities and roads are not adequate, (3) prevention of sprawl throughout the county, and (4) which I think is the most revealing, is plan now for open space before it is gone.  I think the integrity of this governing body was highly brought into question at that point in time just by the approval of the CUP.  To try to preserve our open spaces, which is the result of the wishes of the people of Butler County, is not the wrong thing to do.  The wrong thing to do is to put a commercial wind farm project down in a pristine part of the Flinthills, which there is only about 3% of it left in the entire world.  We have a tremendous stewardship responsibility, and I think we have violated that.  We are getting ready to vote on an agreement that we don’t even have in front of us.  I don’t know how we can approve a contract that we don’t even have.  We have discussed a lot of things, there’s a lot of confusion, and a lot of things going on here, and we are about to burden the taxpayers and future generations of people in Butler County with a financial burden and we don’t even know what the agreement says.  I think that’s outrageous.  That’s all I have to say.”

 

Commissioner Wheeler asked if there was any other comment.

 

Commissioner Carpenter stated that, “I would take exception to Chairman Wheeler’s statement that we were trying to drag this thing out.  My only interest is the taxpayers of Butler County and not the decision to have a wind farm in Butler County, which was made two years ago.  But I won’t apologize and never will apologize for representing the people in Butler County in the way I see fit, so I do take exception with that.  All along I’d always wanted a guaranteed rate of return, and if that’s considered dragging this thing out, then so be it.  But, I won’t apologize to the people for representing their interests.”

 

Motion carried 4-1.  Commissioner Doll voted no.

 

ITEM #3 – RECESS TO EXECUTIVE SESSION TO DISCUSS MATTERS OF A LEGAL NATURE WITH COUNTY COUNSEL CONCERNING RECENT LAWSUITS

Commissioner Doll motioned to recess the Board to Executive Session at 10:40 a.m. for 15 minutes for consultation with an attorney for the body or agency that would be deemed privileged in the attorney-client relationship.  Commissioner Woydziak seconded the motion.  Motion carried 5-0.  Those in attendance were Commissioners Carpenter, Doll, Waldorf, Wheeler, Woydziak, Administrator Johnson, and County Counsel Norman Manley.

 

RECONVENE

Commissioner Wheeler reconvened the Board at 10:55 a.m.

 

ITEM #4 – CONSIDER APPROVAL OF MAGGARD FAMILY LIVING TRUST-CONDITIONAL USE PERMIT (CUP) FOR A WIRELESS COMMUNICATION FACILITY.  (CASE NO. CU-05-01) {RESOLUTION NO. 05-08}

Rod Compton, Director of Planning & Development, came before the Board for approval of the Maggard Family Living Trust CUP for a wireless communication facility.  They are proposing to construct a 180-foot monopole for a wireless communication facility and an enclosed equipment shelter area for Verizon’s use as the primary cellular carrier and co-location of additional wireless service providers.  The site is located at the NE corner of SE 90th and US Hwy 54 and 77.

 

Commissioner Carpenter motioned to approve the Maggard Family Living Trust Conditional Use Permit for a Wireless Communication Facility. (Case No. CU-05-01) {Resolution No. 05-08}.  Commissioner Doll seconded the motion.  Motion carried 5-0.

 

ITEM #5 – CONSIDER A REQUEST FOR A CHANGE OF ZONING CLASSIFICATION FROM AGRICULTURE 40 TO RURAL RESIDENTIAL.  (CASE NO. RZ-05-01) {RESOLUTION NO. 05-09}

Rod Compton, Director of Planning & Development, came before the Board for approval of a request from Charlene Hogoboom for a change of zoning classification from AG-40 to RR.  This request is for 54 acres of property located at the SW corner of SW 10th and Shumway Road for the purpose of creating two rural residential tracts.

 

Commissioner Waldorf motioned to approve a change of zoning classification from AG-40 to rural residential, Case No. RZ-05-01, Resolution No. 05-09.  Commissioner Woydziak seconded the motion.  Motion carried 5-0. 

 

ITEM #6 – CONSIDER A REQUEST FOR FINAL PLAT APPROVAL FOR ANDOVER VISTA.  CASE NO. PL-05-02

Rod Compton, Director of Planning & Development, came before the Board for approval of a request by Lisa Gardner for a Final Plat Approval for Andover Vista.  This property is located just outside the City of Andover’s jurisdictional territory approximately ¼ mile west of SW Tawakoni Road and SW 90th Street. 

 

Commissioner Doll motioned to approve the request for final plat approval for Andover Vista, Case No. PL-05-02.  Commissioner Waldorf seconded the motion.  Motion carried 5-0. 

 

ITEM #7 – CONSIDER A REQUEST FOR FINAL PLAT APPROVAL FOR DAN WEDEL & SONS AUCTION AND REAL ESTATE ADDITION.  CASE NO. PL-05-01

Rod Compton, Director of Planning & Development, came before the Board for approval of a final plat for an auction and real estate building located at Pickerell Corner & Hwy 400.

 

Commissioner Doll motioned to approve the final plat for Dan Wedel & Sons Auction and Real Estate Addition, Case No. PL-05-01.  Commissioner Woydziak seconded the motion.  Motion carried 5-0. 

 

ITEM #8 – CONSIDER A NUISANCE ABATEMENT RESOLUTION FOR PROPERTY OWNED BY WILLIAM E. AND J. V. JOHNSON IN BUTLER COUNTY

Clarence Daggett, Division of Environment, came before the Board regarding a Nuisance Abatement Resolution.  Property located in Rosalia and owned by William E. and J. V. Johnson is completely full of refuse, salvage materials, abandoned vehicles and many other items defined as nuisances.

 

Commissioner Carpenter motioned to approve Resolution No. 05-13 for a nuisance abatement.  Commissioner Waldorf seconded the motion.  Motion carried 5-0.

 

ITEM #9 – CONSIDER GRANT FUNDING FOR REMOVAL OF AN ILLEGAL DUMPSITE AND APPROVAL OF AN AGREEMENT FROM REIMBURSEMENT OF FUNDS ASSOCIATED WITH THE EAST GARDEN MOBILE HOME PARK 

Clarence Daggett, Division of Environment, came before the Board regarding grant funding to remove an illegal dumpsite located in rural Rose Hill known as East Gardens Mobile Home Park.  The new owners have evicted all of the tenants.  The clean up will involve only the waste scattered about the property and/or piled up.  The property owner is responsible for removing all of the mobile homes.  The State Grant will pay 75% of the cleanup costs and Butler County will pay 25%.  This 25% will be for in kind services such as labor, equipment, transportation, supplies and landfill tipping fees.  The property owner will reimburse Butler County for the 25% matching share.

 

Commissioner Woydziak motioned to approve the grant application for clean up of East Garden Mobile Home Park and allow the Chair to sign.  Commissioner Waldorf seconded the motion.  Motion carried 5-0.

 

APPROVAL OF ADS & ABATES

Commissioner Woydziak motioned to approve Adds & Abates #2211.  Adds in the amount of $3,985.14 and Abates in the amount of $19,736.36.  Commissioner Doll seconded the motion.  Motion carried 5-0.

 

RECESS

Commissioner Wheeler recessed the Board for 5 minutes at 10:45 a.m.

 

RECONVENE

Commissioner Wheeler reconvened the Board at 10:50 a.m.

 

OTHER ITEMS OF BUSINESS

Commissioner Woydziak stated that he appreciated that the Commissioners can have differing opinions and still work well as a Board.

 

Commissioner Wheeler inquired about changing the commission meetings to once per week instead of twice.  Administrator Johnson stated that a Charter Resolution would have to be done.

 

Administrator Johnson stated that Canvassing of the Election would be at 9:00 a.m. on Monday, March 7, 2005.

 

Administrator Johnson stated that the meeting with Farm Bureau has been changed to Tuesday, April 19, 2005.

 

ADJOURNMENT

Commissioner Woydziak motioned to adjourn the meeting of the Board at 12:00 Noon.  Commissioner Doll seconded the motion.  Motion carried 5-0.