March 10, 2020 Tuesday 9:00 am
The Bourbon County Commission met in open session with all three Commissioners, the County Counselor and the County Clerk present.
Also present for a portion of the meeting were Apex representatives Jeff Spangler, Chris Knapp, Luke Hagedorn, Alan Claus Anderson & Julianna Planelli, Tammy Helm with the Fort Scott Tribune, KODE, KOAM, Jody Hoener & Jerad Heckman. Also present were the following (that signed in), Arlene Weber, Barbara Peine, Mary Pemberton, Rhonda Dunn, Kim Simons, Anne Dare, Deb Lust, Dale Arnold, Noah Fischer, Gary Rhodes, Clint & Rachel Walker, Sparky Schroeder, Hazel Swartz, Nancy Van Etten, Heather Herring, Jo Ann Thomas, D. Kmiec, unreadable name, Bob & Judy Marshall, Joe Ludlum, Gavin Fry, Sara Conkling, Stacy Racy, Bill Keith, Jeannie Comstock, Janet Beene, Kathleen Gilliland, Bill Lalman, Tara Allen, Mike Wunderly, Brent Smith, Josh Jones, Brian Powell, Else Moss, Kevin Huber, Abbi Huber, Don Westhoff, June Bloomfield, Jane Burns, Wilma Hibdon, James Malveaux, Karen Kellenberger, Leon & Sherral Fry, Tim Emerson, Barbara Schmidt, Pam Fowler, Marilyn Flagg, Linda Walker, Marla Koester, Deb Martin and Deb Morter. There were others present who did not sign in.
Jeff made a motion to go into a 10 minute executive session for consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship, Nick seconded and all approved, (the session included the Commissioners and Justin Meeks). No action was taken.
Lynne gave a payroll overtime report to be paid on 3/13/2020; the Sheriff’s department had 127 hours of overtime, the Treasurer’s department had 4.5 hours of overtime, the Attorney’s department had 68.25 hours of overtime, the General department had 3.5 hours of overtime, the Jail had 128 hours of overtime and the Road & Bridge department had 41 hours of overtime.
Jeff Fischer gave a presentation, he said when he worked at Kiewit (a company that did large industrial construction projects), he implemented a 5 year training program regarding contract administration. He said the learning objectives today were to identify road use agreements, identify relative contract terms and develop a contract administration plan. He presented an email form someone regarding the Neosho County wind farm construction and the roads there with what the writer of the email felt were safety issues there, Jeff asked the audience to identify issues pointed out in the email, which they did. Jeff presented the Neosho road use agreement, which Jeff said was similar to the contract Bourbon County had been asked to sign; he said the learning objective from reviewing the contract was to identify with reasonable anticipated road use agreements – construction traffic on non haul routes, maintenance of traffic – missing signs, preconstruction for engineering report- low water crossing who is liable? Jeff asked the group to read the contract and find information in the contract that could help resolve issues when they arise, which the audience did. Jeff said there will be issues that arise. Deb Lust said from the beginning the County will have identifiable items high in the process and the developer will have some, she said the two will have to come to an agreement in some areas. She said a pre-inventory of the planned haul route roads would need to be done and issues would need to be identified. The agreement identifies who will share the responsibilities, she said there are mitigation means to get the best possible haul routes, she said both parties should share in workable solutions. Jeff said he spent time looking at different agreements for wind farm projects in different counties. Rhonda Dunn questioned the contract for Bourbon County; Jeff said that contract is in draft form. Anne Dare discussed the communication process, (or lack of) and timeliness regarding the wind farm project. Rhonda Dunn said Bourbon County needed a better process than Neosho County since it appeared the process wasn’t working in Neosho County; Jeff said having a good process and contract is important. Rhonda Dunn questioned what objective he was trying to accomplish with presenting the Neosho County contracts; Jeff said he wanted them to identify issues that could arise and how the contract addresses those issues. Jeff said it was important to pay attention to the details. Rhonda Dunn questioned when the Bourbon County contracts would be public record; Justin Meeks said the contracts would be public once they are signed. Deb Martin said the contracts should be made public before they are signed so the public knows what is in the contract since this will effect generations of people. Lynne said the Commissioners will review the contracts in executive session, but they will vote publicly whether or not to accept the contracts. Bourbon County was presented a draft contract in December 2019. Bobbi Kemna questioned if the County was under any timeframe to sign the contracts; Jeff said he didn’t think today was the magic day, Lynne asked Jeff not to speak for the entire Commission; Lynne said they will review the contracts, but they didn’t know what the results would be. It was stated that it could be requested to be put on the ballot for a public vote, but the Commissioners could deny that request; Justin Meeks said Bourbon County is a non-zoned county. Rhonda Dunn said the Commissioners could put it on the ballot; Justin once again said that Bourbon County is a non-zoned county and said this is a contract between the wind farm company and a private landowner. Justin said that someone could run for office if they wanted to try and implement zoning. Justin Meeks presented a copy of the map of the possible roads to be used for the wind farm. Justin Meeks said if the County decides not to sign the contracts the project could go forward anyways since the wind farm company could have easements from the highway and wouldn’t need county roads. It was mentioned that the estimated PILOT agreement for Bourbon County over a 10 year period is $3.6 million or $360,000/year for 10 years. Rhonda Dunn said the Neosho PILOT payment was $950,000; Jeff said you have to compare apples to apples. It was asked if the County could restrict access to the roads; Justin said they don’t have to have access to County roads and said the County can’t keep you from using the roads will your farm equipment. It was stated that eminent domain could not be used since the wind farm isn’t owned by a power company. Mary Pemberton asked if the County had adequate time to negotiate; Justin said he believed so. Rhonda asked if the County had accepted money from APEX; Justin said no. Bobbi Kemna asked if the wind farm company sold would the new owner be responsible for the PILOT payment; Justin said the contract obligation would go to the new owner. Justin said the Commissioners would oversea the PILOT money.
Nick made a motion to move the meeting to the 1st floor Courthouse lobby, Lynne seconded and all approved.
Nick made a motion to go into a 30 minute executive session for consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship for contract review, Jeff seconded and all approved, (the session included the Commissioners, Justin Meeks and Alan Anderson). No action was taken.
Lynne made a motion to go into a 30 minute executive session for consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship for contract review, Nick seconded and all approved, (the session included the Commissioners, Justin Meeks and Alan Anderson). No action was taken.
Jeff made a motion to go into a 20 minute executive session for confidential data relating to financial affairs or trade secrets of corporations, partnerships, trusts and individual proprietorships, Lynne seconded and all approved, (the session include the Commissioners, Justin Meeks and Alan Anderson). No action was taken.
Lynne made a motion to go into a 15 minute executive session for consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship for contract review, Nick seconded and all approved, (the session included the Commissioners and Justin Meeks. After the session, Jeff made a motion to meet Friday, March 13th, 2020 at 9:00 am to discuss the wind farm contracts, Nick seconded and all approved. Some of the meeting will be in executive session and some will be in open session.
The meeting was suspended until 1:30.
Hazel Swartz met with the Commissioners regarding the new policies and guidelines adopted regarding public comment at the Commission meetings; she said she realized there were more important issues to be discussed then this and said she would reschedule this on the agenda for a later date. She said people were upset on the new restrictions and questioned if people could express their opinions or concerns in only 5 minutes. She felt this was the worst possible time to implement new guidelines, but said the Commissioners didn’t have to let people have the 5 minutes to speak, she said it was their meeting and they didn’t have to open it up for public comment. She said she would pray earnestly about the division being brought forth and pray that personal, rude and slanderous remarks will not be made. She said the decision placed before the Commissioners is dividing our community. Lynne gave Justin permission to present information to Hazel regarding the meeting format.
Lynne made a motion to go into a 5 minute executive session for consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship, however this motion was retracted.
Lynne made a motion to go into a 10 minute executive session for consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship, Jeff seconded and all approved, (the session included the Commissioners and Justin Meeks). No action was taken.
Arlene Weber met with the Commissioners; she said she lives right in the middle of the proposed wind farm. She said 3 years ago she voiced her disapproval over her high property taxes, she said she was told this was due to her prime real-estate, she said her prime real-estate will now be surrounded by 24 wind turbines. She said Jeff Fischer stated that the road width would need to be increased to 50’ to accommodate the wind farm equipment; she felt doing this in her area could be questionable since there were water ways near the roads. She said there were studies done discussing health consequences with wind farms. She said she was fearful regarding air ambulance being able to come in the area with the wind farms; she said at times they have to call for ambulance service to their property. She discussed the ¼ mile setback requirement for the turbines. She discussed the health effects on animals and discussed the past history (wagon trails and trading post) in the area near the turbines. She asked the Commissioners to take into consideration her concerns.
Anne Dare read a letter to the Commissioners; in her letter she questioned if the wind farm project is such a great opportunity for Bourbon County then why all the secrecy? She questioned how tall the turbines would be, how tall will they be with the blades attached, what are the setbacks, how many turbines would there be, how far away does a turbine have to be to avoid shadow flicker and noise and where will the turbines be placed? She said the citizens of Neosho County had these answers before the negotiations with the Commission started and asked why our citizens weren’t afforded the same consideration? She said she was told she could go to numerous websites for the answers to her questions; she has, but said some of the answers are vague and dated. She said she has talked to KDHE, KDWPT, US Fish and Wildlife and the Attorney General’s office, but said none of them knew anything about this wind company coming to our county since the State doesn’t have any regulations for wind energy companies. She said there were three people planning on building homes near the proposed wind farm location, but said those plans are now on hold; she said those people planning to build homes don’t get the 10 year tax abatement. She discussed the Commissioners plan to reduce property taxes and asked if they had considered putting the PILOT money towards lowering the mill levy. She questioned the value of a turbine and the value in 10 years and what they would equate to in tax dollars. She questioned the following regarding decommissioning; what does the decommissioning agreement communicate, how much will it cost to remove the turbines and restore the land, has a bond been put in place to cover these costs at a rate to reflect inflation, where will the turbines go to be recycled or restored and what will it cost the County? She asked that the Commissioners vote against these agreements and allow the people of Bourbon County to vote to decide on the wind turbines.
Mary Pemberton met with the Commissioners regarding the wind farms; prior to the meeting she presented documentation, but did not read her documents. She said she felt it was a shame that this issue has divided our County. She asked Alan Anderson (attorney for APEX) how many wind contracts he had negotiated, he said he wasn’t sure, she asked how long they typically take to negotiate, he said most are fairly quick depending on the situation, but had never had one take 16-24 months to negotiate. She said the Commissioners are trying to do the wind farm negotiations on their own in a condensed timeline; she said they have the ability to hire outside help and said they weren’t doing their due diligence in the process. She said APEX is putting pressure on them to sign quickly. She said Crawford County hasn’t been presented contracts yet. She urged the Commissioners to hire an outside professional engineer as well as an experienced wind energy contract attorney to negotiate the agreements for Bourbon County.
Nancy Van Etten met with the Commissioners regarding the Fort Scott Lake sewer district; she reminded the Commissioners of her past efforts and the need for the sewer district to have a board to have oversight and to be the governing body of the Lake Sewer District. She said her new sewer bill had a 57% increase for waste water sewer increase, she said the city residents’ increase was 3%. She said a notice of the planned increase in the newspaper made residents aware of the planned increase. She asked the Attorney General how to resolve the issue of “who is the Lake Sewer District”: is it the County or the City; they didn’t have the authority to interpret the inter-local agreement entered into by the City of Fort Scott and Bourbon County and said both parties needed to consult with their own legal counsel for such assistance. She provided various documents to the Commissioners, one of which was information from the Kansas Department of Health and Environment; she said it states that “the governing body means the Board of County Commissioners of the county in which the sewer district is located”. And “the board shall be the governing body of any sewer district it creates and shall have the power to “take any action for a safe, proper and economical operation of any sewer district.” In concluding she said the County Commissioners are the Sewer District #1 Board; she requested the sewer district have annual meetings to review the inter-local agreement, assure proper and economical operation of the district and appoint members to the board who live in the district and someone to represent the City.
Jeff made a motion to authorize Lynne to sign a letter of commitment for the Blue Cross Blue Shield Pathways to Healthy Kansas Phase 2 Grant Application, Nick seconded and all approved and Lynne signed the letter.
Lynne made a motion to go into a 5 minute executive session for Consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship to discuss contract negotiations, Jeff seconded and all approved, (the session included the Commissioners and Justin Meeks). No action was taken.
Lynne made a motion to go into a 10 minute executive session for Consultation with an attorney for the body or agency which would be deemed privileged in the attorney-client relationship to discuss contract negotiations regarding the medical mall, Jeff seconded and all approved, (the session included the Commissioners and Justin Meeks). No action was taken.
At 3:08, Lynne made a motion to adjourn, Jeff seconded and all approved.
THE BOARD OF COMMISSIONERS
OF BOURBON COUNTY, KANSAS
(ss) Lynne Oharah, Chairman
(ss) Jeff Fischer, Commissioner
(ss) Nick Ruhl, Commissioner
Kendell Mason, Bourbon County Clerk
March 16, 2020, Approved Date