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MINUTES
BROOKTRAILS TOWNSHIP COMMUNITY SERVICES DISTRICT
BOARD OF DIRECTORS
BROOKTRAILS COMMUNITY CENTER
24850 Birch Street, Willits, CA 95490
October 25, 2005
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The Board of Directors of Brooktrails Township Community Services District met in regular session October 25, 2005 at 7:00 p.m. in Brooktrails Community Center.
A. PLEDGE OF ALLEGIANCE
B. ROLL CALL
Roll call showed the following Directors present: Ziady, Horrick, Pohlson, and Skezas. President Orth was absent due to illness. Vice-President Skezas served as Acting President for this meeting. Also present were General Manager Chapman and District Counsel Neary.
REPORT ON CLOSED SESSION
District Counsel Neary reported that the Board had met for annual review of the District Counsel's contract, and the Board had unanimously approved the twenty-first extension of this contract.
C. ADDITIONS/ADJUSTMENTS TO THE AGENDA
General Manager Chapman noted that the first item on the Action Agenda (Flynn/Austin greenbelt exchange) would be tabled to the December meeting because Barbara Flynn was seeking legal advice and requested the delay.
D. MINUTES OF PREVIOUS MEETINGS
1. October 11, 2005
Director Horrick moved to approve the minutes; Director Pohlson seconded and the motion carried unanimously.
E. SPECIAL PRESENTATION
None.
F. PUBLIC HEARING
None.
G. PUBLIC COMMENTS
Art Eck took the podium and said he would like to see his parking ordinance passed. Also, he stated that marijuana growers are invading Brooktrails and that a report had been made by a resident about this at the Specific Plan Advisory Committee meeting several months ago. He said two of his neighbors are now growers. He stated concern about people living next door to growers where criminals have taken the plants and which nearly erupted in a gun battle. He said the law allowing marijuana cultivation needed to be changed to restrict the number of plants that can be grown. He referred the Board to the Willits ordinance prohibiting growing outside and said this does not solve the problem of the criminal element. He asked the Board to determine the number of plants that would be sufficient and to draft an ordinance prohibiting outdoor growing and with filtering of the smell.
Jim West was next and read from a statement discussing well drilling by private lot owners. He said if the water rights could be returned to the property owners, the District could sell permits for well drilling to the owners on a case-by-case basis. He said according to Bruce Burton this should not be considered a water hookup; he said Bruce Burton had said DHS had no concern about water wells in a district. He proposed that if sufficient water were found, Brooktrails could cap that well, drill another well, reimburse the property owners for their drilling costs and leave them a percentage of the well. He said this would be acceptable to DHS. He said not everyone would be able to drill because of regulations. He said if the District were worried about people selling well water, then we should meter the wells. Mr. West concluded that if the District were considering a water dowser, Doug Brown had performed this service for him. He handed out a copy of the written statement to the directors.
H. CONSENT CALENDAR
2. Review of Accounts Payable Report and authorization to issue checks. Director Horrick moved to approve payment of the accounts; Director Ziady seconded and the motion carried unanimously.
3. Review of Clearwell Project Accounts Payable Report and authorization to issue checks. Director Horrick moved to approve payment of the accounts; Director Pohlson seconded and the motion carried unanimously.
I. ACTION AGENDA
4. Flynn/Austin greenbelt exchange – review agreement. Matter tabled to December 13, 2005 agenda.
5. Johnson Water Exemption – Extension of Time and Variance Request by Buyer Buck Smith.
General Manager Chapman noted there were two components to this request: (1) a variance request to the usual District procedure (i.e., the variance would allow Mr. Smith to purchase the water connection prior to submitting approved building plans), and (2) an extension of time from the current deadline (for the Johnsons) of December 31, 2005 until April 1, 2006 (for Mr. Smith) to submit approved building plans and a County building permit. These requests came from Mr. Smith's lenders as conditions to close on the loan. Mr. Chapman felt it would be in the best interests of the District to finally resolve the longstanding Johnson connection problem (2 _ years). The Johnsons were instructed in March 2005 to submit new plans and pay the connection fees ($6,200) by December 31, 2005; neither has been done to date. The lenders in essence requested a "will serve" letter, but this will not be provided; instead, Mr. Chapman proposed to provide the lenders an approved Board resolution stating District intent. He suggested that Mr. Smith be required to pay for the water connection by November 10, 2005. The extension of time to April 1, 2006 was needed so that Mr. Smith could have custom plans drawn for the site. Mr. Chapman stressed that while he had had several conversations with the lenders, he had not heard from them again after proposing this solution, but he affirmed that this proposed resolution would be the only response from the District.
District Pohlson said she had voted against this extension of time when the Johnsons requested it (March 2005), because there were people waiting for water connections and it was District policy that if you failed to comply with District procedures for water connections, you forfeited that connection and it went to another party. She said that on principle, when people do not fulfill their obligations, they were not entitled to sell that hookup to anyone else.
General Manager Chapman advised that the service connections granted by the state were APN site-specific. He said if the parties failed to meet the obligations it could not be transferred to the owners of another lot somewhere else in the District. Director Pohlson said the term "hardship" exemptions referred to hardships on the person, and did not travel with the land, and asked why we had not made the Johnsons fulfill their hardship exemption conditions prior to selling it. She recalled another party wanting to sell a lot without the plans being completed, and said you could see where this was going: ratchet it up and sell it, ratchet it up and sell it. She believed that Bruce Burton had said you had to fulfill your obligation for the hardship, and then if you sold that property after it was complete, that was up to you. General Manager Chapman said that Director Pohlson’s concern had been resolved with District Counsel, and there were any number of reasons why properties can move (e.g., death, moving, divorce). However, the state granted an APN site-specific water connection, and then the party had to further satisfy the District conditions of obtaining a County building permit and paying the connection fee. Director Pohlson said this was exactly her point—the Johnsons did not satisfy District conditions.
District Counsel Neary voiced this was a waiver request and there were no obligations on the part of the Board. He pointed out that the way the resolution was worded, it would be specific to this individual alone, and Mr. Smith was not going to be able to go out and just sell the property; he believed the District could impose these conditions upon Mr. Smith because a variance was being requested, and when a variance is requested, that act is considered discretionary and the District can impose conditions. Furthermore, the resolution provided that what happened with the Johnsons (selling to Mr. Smith prior to building) would not re-occur. Director Pohlson reiterated that the Johnsons did not fulfill their obligations the first time, and now they again have not fulfilled their obligations, and said she would not vote for it.
Director Ziady recalled that Johnsons presenting medical reasons as their justification for a time extension (December 31, 2005). She said the track record of the Board had been to extend these time limits. She said although she had been suspicious at the time, she had seen no reason to deny the Johnsons' request at the time. However, she felt the Board needed to set some guidelines which would include “x” amount of time so that these time delays do not drag on forever. She said at this time she saw no reason to deny Mr. Smith's request. District Counsel Neary voiced that Director Ziady was discussing the Board setting a procedure for “additional hookups that become available in the future,” and not to have a local policy of extensions.
Director Skezas said he understood that the District had already established a policy that if additional hookups were approved, we would go down that list. District Counsel Neary said that the Board would have to look at exercising discretion at that point, as in a hardship situation, and we should have our policy fully prepared before applying for additional exemptions, and it may be possible to make them applicant-specific and time-specific.
Buck Smith took the podium and said he and his wife had already had their approved construction loan, and intend to buy a lot and construct this spring; he said he has no intent to drag it on or to sell it. He said the home plans they had picked out before finding the current lot would not work on this particular lot, and they needed a soils engineer review. They had invested $2,500 into the lot already, and did not want to put more into it without knowing there would be a water hookup. At that point they changed their application to a lot loan.
Jim West took said he wondered why Bill [Barksdale] was representing that Brooktrails was allowing the water hookup on this property. General Manager Chapman said the Johnsons received a third time extension last March 2005, in open session. Mr. West said he recalled being told by Mr. Chapman that if nothing was done by a specific date, no water would be allowed. Mr. Chapman said that date was December 31st for the Johnsons, and they would have to revisit the Board for another time extension, and it would be the will of the Board as to whether that extension was granted. He clarified that there were two matters before the Board: one the variance in procedure, the other an extension of time for plans. He said if the Smiths' bank came up with something else tomorrow, he could not offer them any more than what the resolution stated, and there would be no "will serve" letter (other than the resolution). Mr. West said this man has already been told he could have a water hookup. General Manager Chapman said the State had granted a water connection on this site, but the connection was conditional — as long as the applicant met the conditions required under our ordinance, which include a county building permit and paying for hookup fees. The Johnsons have not met these conditions. He continued that Mr. Smith, the purchaser, says he will pay the $6,200 connection fee immediately after closing, and is asking our Board for a time extension until April 1st to put better house plans together, and says he intends to start construction this spring. Mr. West asked if this had to do with just the duration of time, or whether the Board was going to vote on whether Mr. Smith could have a hookup. Mr. Chapman said there were two issues: one that the bank was requiring that a meter be physically placed on site as soon as possible, and the other being to allow sufficient time to prepare house plans, and that December 31, 2005 would simply not allow enough time for that.
Bill Barksdale [realtor for the Johnsons/sellers] said that the Johnsons told him that the water hookup was available and it was the buyer's responsibility to get written permission from the Board before close of escrow. He said he understood certain procedures would be required, but that one condition was approved plans submitted. He said from what he was hearing tonight, that has not happened. He said he had not personally guaranteed there was a water hookup available, but had said there were certain procedures that would be necessary. He said he was at the meeting to observe and report back to his clients, the Johnsons.
General Manager Chapman said he had sent two letters to the Johnsons, the first in March immediately after the meeting where the extension of time was granted, the second in May when the property had been listed for sale. He reminded them there was a timeline and connection fee condition they had to meet. Director Pohlson said she did not want Mr. Smith to be punished for the inaction by the Johnsons. However, she did not want people to come to the Board and knowingly make misstatements about their intentions. Mr. Smith replied that he would be willing to have the resolution rewritten to allow less time for the plans to come in, or to specify that the connection would not be transferable to another seller. District Counsel Neary said he believed the resolution made this sufficiently clear. Director Skezas asked what if Mr. Smith missed the April 1st deadline—whether he would have no meter and lose the connection fee. District Counsel Neary said the meter would be a construction meter, and these are only allowed for a year anyway. Mr. Chapman said at a minimum Mr. Smith would have to ask for another extension. District Counsel Neary said, if on April 1st Mr. Smith had done nothing except to pay the $6,200.00 connection, then at that point, if no extension were allowed by the Board, he would have until November 2006 to complete the house and have this signed off by the County, or the District would be entitled to remove the meter for noncompliance with our ordinance. He said this is a simple control, easy to apply, which existed prior to the moratorium. District Counsel Neary said, of course, if he starts building in April and is 80% complete by November 2006, he is more likely to get an extension. Director Skezas said his real concern was whether Mr. Smith would do what the Johnsons have done: show up on April 1st and say, I don't have plans and I want an extension. Director Skezas voiced his opinion that he believed at that point he should be told, you've just lost your $6,200.00 connection, and the meter goes away.
Mr. Smith said if they don't have home plans approved by April 1, he would even be willing to pay a fine, or to re-pay the water connection fee, to prove they are serious. He said the loan is a lot loan that is meant to roll into a construction loan, and the lenders were also worried that he won't get his plans in by April 1, and the lenders also know what would happen if he failed to comply. District Counsel Neary voiced he didn't think a fine or penalty was appropriate, such would require a hearing and grounds for action, but you could say that the one-year time period starts when the fees are paid. Director Skezas said he felt that was contrary to County law. Mr. Neary said the construction meter is temporary (conditional), and the County has to sign off in a certain length of time for the builder to be able to convert it from a temporary construction meter to a permanent (regular) meter. Director Pohlson asked if a temporary construction meter was acceptable to the lender. General Manager Chapman he did not know, and he did not want to be a third-party negotiator. He said he hoped to show a resolution demonstrating the Board's good faith to make this transaction work, but he has been advised by counsel not to issue a "will serve" letter to a lender. He said he needed something to give the lender, but if this resolution was not good enough for the lender, so be it.
Director Ziady said if construction got held up, and other things happened, she would be satisfied with a provision that Mr. Smith could not transfer the water connection to someone else. District Counsel Neary advised the resolution made the waiver granted specifically to Mr. Smith, and the Johnsons did not have this type of resolution, and that we were tightening up this procedure and the conditions for granting this variance. Director Ziady said she wanted a reasonable assurance that this property wasn't going to be turned around and sold to someone else, to profit from the water meter.
Jim West said the lenders are probably going to want to be able to sell the property if something drastic happens, and they would want to make sure they are protected. Director Pohlson suggested an insurance policy. Director Skezas said he was concerned because this water hookup was approved because the Johnsons demonstrated a hardship to the State, and now it is being purchased by Mr. Smith. He said all of the expenses the Johnsons incurred will probably be paid when escrow closes, and now there is no hardship. He was concerned that the Board was trying to bypass the hardship part of this, and we may get into trouble with the state. General Manager Chapman said he had talked with Bruce Burton (DHS) previously about the subject of transferability; however, no discussion had occurred about a construction meter versus a regular meter. He said he would need help from District Counsel Neary for any needed changes to the resolution, and restated he did not feel comfortable being the third-party negotiator, and this is exactly the position the District has been put in.
Director Horrick said it was the State's intention at the time they imposed the moratorium to give relief to those people ready to build (March 2003), and this is not the case now. He said this did not follow the intent of the state to alleviate hardships, and he had the same concerns as Director Skezas. District Counsel Neary said the state has said you can transfer them, and he did not think it was an issue with the state as to whether we would grant a discretionary variance.
Director Skezas said that in paragraph 1 of the draft resolution he would like to insert the phrase "in accordance with District Ordinance 127" [Note: correct ordinance is number 76, as most recently amended by Ordinance 127] and if the lenders were not satisfied with the provisions of the ordinance and a construction meter was not satisfactory to them, then we can't do much about that. He noted Mr. West's concern that the lender might want to be sure that it is a permanent hookup, and that if foreclosure became necessary, the lender would want to have a lot with water on it, and a construction meter would not provide that. He said if the lender wanted to look at the ordinance and this issue came up, they may well shoot it down. District Counsel Neary doubted the lender would ask to see the ordinance. Director Pohlson said that our goal in the ordinance is to follow the steps, and the ordinance will not be needed if you follow the steps.
Director Skezas said he would be willing to support the proposed resolution if we added the suggested phrase, and asked Mr. Smith if that would be satisfactory. Mr. Smith said yes, hopefully. [Note: In essence, the resolution gives Mr. Smith until April 1, 2006 to validate a County building permit, and allows him to pay the $6,200.00 water service connection fee in advance of submitting plans, provided he does so by November 10, 2005.] Director Ziady moved to approve Resolution 2005-23 as so amended.
Director Horrick seconded. Roll call vote was as follows:
AYES: Directors: Ziady, Horrick, Pohlson, Skezas
NOES: Directors: None
ABSENT: Directors: Orth
7. Receipt of draft Greenbelt Stewardship Plan from Recreation, Greenbelt & Conservation Committee.
Director Ziady thanked the many individuals who had assisted in developing this plan, especially those who had gone beyond the call of duty. She thanked CDF Captain Bill Baxter and CDF Battalion Chief Mark Tolbert, facilitator Brian Weller, and the members of the ad hoc committee. Director Horrick moved to receive the draft Greenbelt Plan; Director Pohlson seconded and the motion carried unanimously. The plan will be discussed at the November 8th meeting.
8. Receipt of the 2003-04 audit from Terry Krieg, CPA.
General Manager Chapman noted Mr. Krieg's management letter and said he was trying to respond very specifically to it, although Question 3 regarding document changes on the budget coming to the Board was unclear, and he will discuss this again with Mr. Krieg, because there are too many things that happen during the year that are slightly different than originally planned in the budget. He cited an example of the Division of Dams in January, 2004 billing us $21,000, instead of the historical $2,500.
However, Mr. Chapman did come to the Board with an immediate explanation of that matter. The General Manager also reported that he had just received the City of Willits audit for June 30, 2004, a full year beyond normal expectations. Mr. Krieg will now have to take those numbers and adjust his audit for FY 2004-05. Mr. Chapman thought there would be a credit situation with the City regarding our payments. The audit will be discussed at the November 8, 2005 meeting.
J. ADDITIONS TO FUTURE AGENDAS.
None.
General Manager Chapman said he may bring an air quality issue before the Board in January which was raised by Chris Brown, Mendocino County Air Quality Management District, regarding how we burn woody debris. Director Pohlson asked if this pertained to the entire community; Mr. Chapman responded it only applied to the government.
K. SPECIAL REPORTS
Directors: None.
District Counsel: None.
General Manager Chapman: Mr. Chapman said he had nothing further to add.
L. PUBLIC COMMENTS
None.
M. ADJOURNMENT
Director Horrick moved to adjourn and President Orth declared the meeting of October 25, 2005 closed at 8:00 p.m.
CHARLES A. ORTH
President Orth
MICHAEL V. CHAPMAN
Secretary to the Board of Directors
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