BOONE COUNTY BOARD OF ADJUSTMENT

BOONE COUNTY GOVERNMENT CENTER

801 E. WALNUT ST., COLUMBIA, MO.

Thursday, March 28, 2002

 

Chairperson Rootes called the meeting to order at 7:00 p.m. in the Boone County Commission Chambers having a quorum present.

Chairperson Rootes read the procedural statement stating that this Board is appointed by the Boone County Commission to consider specific application of the zoning and subdivision regulations. The Board is empowered to enter rulings that may give relief to a property owner from the specific application of the Zoning and Subdivision regulations. Generally, variances can only be granted in situations where by reason of shape, topography or other extraordinary or exceptional situation or condition of a specific ordinance would result in peculiar and exceptional difficulties to or exceptional and demonstrable undue hardship upon the owner of the property as an unreasonable deprivation of use as relating to the property. A variance from the strict application of this ordinance can be granted provided the relief requested will not substantially impair the intent, purpose and integrity of the zoning regulations.

Notice of this meeting has been published in accordance with our by-laws for the proper number of days. All decisions of the Board are based on the zoning or subdivision regulations for Boone County, Missouri, and they are hereby made a part of the record of this meeting.

This Board is comprised of five members, with three members constituting a quorum. An applicant must receive at least three votes in order to receive the relief that they have requested from the Board. Any applicant appearing before this Board has the right to be heard by all five members. At times that all five members are not present, the applicant, and only the applicant, may choose to wait until such time as all five members are present to hear their request.

Roll call was taken:

Present: Linda Rootes, Chairperson

Larry Bossaller, Vice-Chairperson

Cindy Bowne

Tom Trabue

Kay Clementz

Absent: None.

Also present: Stan Shawver, Director Thad Yonke, Staff Bill Florea, Staff Paula Evans, Secretary

Member Bowne made and Member Bossaller seconded a motion to approve the minutes of the January 24, 2002 meeting with no corrections.

Minutes approved by acclimation.

REQUEST

 

  1. Case Number 2002-003

Appeal by Barry and Sherri Homan of a decision by a Boone County official stating that the use of property located at 14341 N Proctor Rd., Columbia, is in violation of the permitted uses for the A-2 (Agriculture) zoning district.

Director, Stan Shawver gave the staff report stating that the property is located 4 miles east of Harrisburg, 10.5 miles north of Columbia on Proctor Road, 2 miles east of Highway 63 and approximately 1/2 mile south of Highway 124. The property is zoned A-2, all the surrounding property is zoned A-2 as well. The applicants live on the property and conduct a landscaping business on the property. The property is heavily landscaped. There is also an opened air shelter that has been used in conjunction with the conditional use permit, which was issued in 1999. The original zoning for the tract is A-2. In 1999 a conditional use permit was approved that allowed the original 10.97 acre tract to be used as an outdoor recreational facility.

The County Commission suspended the conditional use permit in November 2000, because the applicant had failed to comply with original conditions set on the permit. In December 2000, a rezoning request was submitted to change the zoning to recreation. That request was denied.

Present: Kent Brown, Attorney for applicants, 613 E. McCarty St., Jefferson City.

Barry Homan, 14341 N. Proctor Road, Columbia.

Sherri Homan, 14341 N. Proctor Road, Columbia.

Mr. Brown stated that the zoning ordinance for the County of Boone defines what permissible uses are. This land is zoned A-2, agricultural. The zoning ordinance states that permissible uses in A-2 is any permitted use in the A-1 district. A park and forest preserve is a permissible use. The question that will be presented to the Board is not a question of rezoning, but a question of whether the use that has been challenged by the Directorís office is in fact in violation or whether it is in fact consistent with the park and forest preserve. That is the basic issue for decision.

Applicants presented a booklet of the Alpine Park and Gardens to the Board. Applicants also presented slides on screen of the booklet.

Each slide is marked with exhibit stickers. On a few pages there may be "7A, 7B, and 7C". Those refer to back up materials.

Another question that the Board will be asked to decide is that there are two uses going on and it requires separate addressing from the Board. One is, if applicants charge a fee to use the park for a wedding or reception is that a permit use or a violation? The other is, if applicants donít charge a fee, but the only thing they do is charge labor to clean up and set up, does that make a difference in whether it is a violation.

Mr. and Mrs. Homan were sworn in by the court reporter.

Mr. Brown asked Mrs. Homan to state her full name for the record.

Mrs. Homan did so.

Mr. Brown asked Mrs. Homan what her husbandís name is.

Mrs. Homan stated Barry.

Mr. Brown asked Mrs. Homan her address.

Mrs. Homan stated 14341 N. Proctor Road, Columbia, Missouri, 65202-9421.

Mr. Brown asked Mrs. Homan to give an overview of the presentation.

Mrs. Homan stated that applicants were going to talk about the park and gardens, the background, how it got started, the operations. Also the definitions, infrastructure, all the things that are located on the park, applicants investment, affiliations and support, and also a few demographics of Boone County and talk about what alternative agriculture is. This is what the park is based on, as well as the park systems.

Mr. Brown asked if it was correct if Mrs. Homan if and her husband are the proprietors.

Mrs. Homan stated yes.

Mr. Brown asked Mrs. Homan if she and her husband lived on the site.

Mrs. Homan stated yes.

Mr. Brown asked if there was another business operation on the site.

Mrs. Homan stated yes, Mr. Homan owns Woods Unlimited and has for the last 15 years. It is a landscaping business.

Mr. Brown stated that no one has ever challenged that the business has been operating in violation of the zoning ordinance.

Mrs. Homan stated no.

Mr. Brown asked Mrs. Homan to tell the Board a little about herself and Mr. Homan.

Mrs. Homan stated that her background is nursing, she is a family nurse practitioner and currently is employed with the Missouri Department of Health and Senior Services. She is an assistant to the Director. Mrs. Homan stated she does research and strategic planning. Mr. Homan attend the University as well and is a landscaper, he has owned Wood Unlimited for 15 years.

Mr. Brown asked applicant to tell the Board a little about the history of the land at issue.

Mrs. Homan stated that the original homestead was platted in 1862, it is well over 100-years old. The previous agriculture uses were cattle grazing, hay growing, timber harvesting, as well as cropping.

Mr. Brown asked what the use of the property is now.

Mrs. Homan stated it is used for agriculture. It is a tree farm and horticultural practices. It is also the home of the Wood Unlimited landscaping business. It is a botanical park and forest preserve. Applicants are using it for alternative agricultural activities.

Mr. Brown asked the scope of the tree farm.

Mrs. Homan stated that the entire acreage is 42 acres. There is a house and gardens occupy about 12 acres. The forest preserve occupies 20 acres, and a prairie of 10 acres.

Mr. Brown asked the significance of the oak tree in the photo slide.

Mrs. Homan stated that oak is one of the seven large oak trees that are located on the 42 acres. That is one of the trees that applicants hope is part of the Missouri Championship Program.

Mr. Brown asked about the next slide, Alpine Park and Garden activities, the timber and forestry.

Mrs. Homan stated that applicants did timber preservation and management, which is under the Missouri Department of Conservation Tree Farm Program. Applicants are part of the forestry stewardship program.

Mr. Brown asked what the forestry stewardship program is.

Mrs. Homan stated it is timber management. Replanting, cutting out the bad timbers, keeping it so the timber grows straight.

Mr. Brown asked applicant to tell about the reforestation.

Mrs. Homan stated that reforestation is replanting. Applicants have purchased over 575 seedlings to be replanted this year; applicants picked them up a couple of weeks ago. It will be a variety of trees that will be planted like river birch and flowering dogwood.

Mr. Brown asked applicants to tell about the landscaping and water features.

Mrs. Homan stated the top picture (exhibit 9A) is of the backyard and what is called the cottage garden. The bottom picture (exhibit 9B) is one of the many water features located on the park, which is called angel falls. It is also part of the storm water management program.

Mr. Brown asked if the Wood Unlimited Company operates with a Boone County merchantís license.

Mrs. Homan stated that its merchantís license is 2002-1589.

Mr. Brown inquired of the next slide the south pasture and northwest pasture.

Mrs. Homan stated about an acre of the south pasture will be planted with wildflowers and native grasses for prairie restoration. The northwest pasture down near the creek bottom, which stays wet, will be turned in to a wetland habitat site.

Mr. Brown asked if applicants engaged in any farming activities, like growing crops or pasturing animals.

Mrs. Homan stated the crops that are grown are for the wildlife habitat.

Mr. Brown stated on the next slide regarding the Reeder Creek and asked applicant to explain more about that.

Mrs. Homan stated the Reeder Creek transects the northwest corner of the property. It is part of the lower Missouri Moreau watershed, which is under hydraulic unit code 10300102. That helps to classify the water source and determine whether youíve got good ground water, which applicants do. It flows to Perche Creek and on to the Missouri River.

Mr. Brown asked Mrs. Homan what the riparian stream bank is.

Mrs. Homan stated there is starting to be some erosion along the stream bank on the top picture (exhibit 12A). Applicants will go in and keep planting seedlings along that to stabilize the stream bank. The bottom picture (exhibit 12) is the dam that happened in the creek and is causing some of the erosion. Mr. Homan took care of removing all of that blockage.

Mr. Brown asked if there was a wildlife habitat.

Mrs. Homan stated the wildlife habitat has many different species of birds and animals that visit the park. Applicants try to leave older trees down for animal habitat. Another activity is the special events, but is all part of the Wood Unlimited and activities.

Mr. Brown asked what type of special events go on.

Mrs. Homan stated mainly weddings, family reunions, birthday parties, and company outings.

Mr. Brown asked if the photograph (exhibit 13) is, of the individual in uniform and his soon to be wife, a photograph of a wedding that was held there.

Mrs. Homan stated yes.

Mr. Brown asked Mrs. Homan if she looked up definitions for A-2 agricultural district.

Mrs. Homan stated yes.

Mr. Brown asked where is the definition that appears on exhibit 14 from.

Mrs. Homan stated the definition is from the zoning ordinance for Boone County, Missouri, 1991 revision.

Mr. Brown asked if the next slide (exhibit 15) was taken from the Boone County Planning and Zoning Commission Ordinance.

Mrs. Homan stated yes it is and it shows permitted uses under A-1 which is part of the A-2 zoning, which is greenhouses, nurseries, home occupations, farm dwellings and park and forest preserves as permitted uses.

Mr. Brown asked Mrs. Homan if that is the four that applicants claim apply to their use.

Mrs. Homan stated yes.

Mr. Brown asked Mrs. Homan if she looked up the definition of what a park is.

Mrs. Homan stated yes, in the Webster Dictionary.

Mr. Brown asked Mrs. Homan if that appears on exhibit 16.

Mrs. Homan stated yes.

Mr. Brown asked Mrs. Homan to read the definition.

Mrs. Homan read "Park- and area of land containing pasture, woods, lakes, etc. surrounding a large country house or private estate."

Mr. Brown asked applicants if it is their contention that one of the ways the Board could help define what a park use is; is by reference to how parks in this area and nationwide are actually used.

Mrs. Homan stated yes.

Mr. Brown asked the applicants, based on their experience, are the parks in this area and throughout the nation used for weddings.

Mrs. Homan stated yes, they are.

Mr. Brown asked if they are used for weddings and other types of events that applicants do.

Mrs. Homan stated yes.

Mr. Brown asked applicant if they looked up the definition of agricultural land in the Missouri Revised Statutes.

Mrs. Homan stated yes.

Mr. Brown asked if that appears on exhibit 17.

Mrs. Homan stated yes.

Mr. Brown asked if applicants looked up agricultural product and agricultural property in the statutes.

Mrs. Homan stated yes.

Mr. Brown asked if those definitions appear in exhibit 18.

Mrs. Homan stated yes, they do.

Mr. Brown asked if exhibit 19 is a copy of the Merchants license.

Mrs. Homan stated that is a copy of the brochure that goes along with the Merchants license. It gives you the instructions and details about the merchantís license.

Mr. Brown asked applicant to explain the infrastructure at the facility. (exhibit 20)

Mrs. Homan stated the infrastructure includes a 40 by 60-foot open pavilion with restrooms to the side. A dry hydrant for fire protection, and non-community public water well certified by the DNR. The last section talks about the emergency services. If an ambulance were needed, one would come from Prathersville. Fire protection comes from Harrisburg.

Mr. Brown asked if the next slide is of the pavilion that was earlier referred to. (exhibit 21)

Mrs. Homan stated yes.

Mr. Brown stated there was some in the review the fact that applicants had a conditional use permit. Mr. Brown asked if the pavilion was constructed after the conditional use permit was issued.

Mrs. Homan stated she did not recall.

Mr. Brown asked if it was pretty close to that time.

Mrs. Homan stated yes.

Mr. Brown asked applicant to explain the wetland at-grade disposal field. (exhibit 22A)

Mrs. Homan stated the wetland at-grade disposal field is a wastewater sanitation system, it takes two holding tanks and the water is treated through a wetland system, through rock and sand. It is one of the newer systems being used right now.

Mr. Brown asked if it would be classified as and environmental friendly system.

Mrs. Homan stated very much so.

Mr. Brown asked if the system was complete and in place now, or still under progress.

Mrs. Homan stated it was still under progress.

Mr. Brown asked if exhibit 23 was a picture of the interior of the pavilion.

Mrs. Homan stated yes.

Mr. Brown asked if it was a true and accurate picture.

Mrs. Homan stated yes.

Mr. Brown asked what exhibit 24 is.

Mrs. Homan stated it is the amphitheater and the backdrop is the forest preserve.

Mr. Brown asked if it was new since the conditional use permit.

Mrs. Homan stated yes.

Mr. Brown asked the uses that have been made of that.

Mrs. Homan stated it has been used for a wedding ceremony, it has also been used for just looking at the woods, for sitting on.

Mr. Brown asked if applicants allow individuals to come out and just walk through and enjoy the park.

Mrs. Homan stated yes.

Mr. Brown asked if people did that.

Mrs. Homan stated yes.

Mr. Brown asked what exhibit 25 is.

Mrs. Homan stated that is a different view of the backyard where the cottage patio was.

Mr. Brown asked what exhibit 26 is.

Mrs. Homan stated that is a picture of the south Koi pond and the viewing deck over it. In the background is the pavilion.

Mr. Brown asked if the viewing deck is new since the conditional use permit.

Mrs. Homan stated yes.

Mr. Brown asked Mrs. Homan what the dry hydrant is in exhibit 27 and asked Mrs. Homan to explain a little about it.

Mrs. Homan stated the dry hydrant is for fire protection, which was recommended by the Boone County Fire Protection District. If there were a fire, the Fire department would connect to the tubing and use the water from the pond.

Mr. Brown asked applicant to describe the parking on the facility.

Mrs. Homan stated they have 22 paved parking areas with 95 additional parking spaces on rock, for a total of 117 parking spaces. It is all off street. According to the Boone County Zoning regulations, if it is not listed in the book it is according to square footage of the building. The pavilion is 2400 square feet, divided by the 300 square feet, which would require 8 parking places. Applicants have much additional.

Mr. Brown asked if that parking was installed after the conditional use permit.

Mrs. Homan stated yes.

Mr. Brown asked applicant to explain what Connorís Fall is. (exhibit 29)

Mrs. Homan stated that Connorís Falls is one of the newer water features in the park. It is all man made with rocks and looks very blended in to the environment. It is also part of a water storm management system; it catches all the water. It sits behind the paved parking lot, so it catches all of the run off water from the lot.

Mr. Brown asked applicants if it was installed new after the conditional use permit was originally granted.

Mrs. Homan stated yes.

Mr. Brown asked applicants if they are still developing the park.

Mrs. Homan stated yes.

Mr. Brown asked if the addition of more paved parking would cause a problem with the development.

Mrs. Homan stated yes, it would at this time.

Mr. Brown asked why.

Mrs. Homan stated that applicants are bringing in big equipment to put in two additional water ponds. Driving the big equipment over the asphalt can break it up. Applicants are trying to get the two ponds in before the additional paving is done.

Mr. Brown asked applicants what the storm water management system is. (exhibit 30)

Mrs. Homan stated that the storm water management system is a way of capturing all the water on the property to keep it on the site instead of letting it run off and cause erosion. There is a dry stream bank that runs through there that catches water that takes it to the Koi ponds. There are french drains underneath the park throughout the whole park that catches the water and takes it where we want it to go.

Mr. Brown asked applicants if this is a system that they installed.

Mrs. Homan stated yes.

Mr. Brown asked Mrs. Homan to talk about the trails and the greenhouse.

Mrs. Homan stated the greenhouse is part of Mr. Homanís Wood Unlimited business. It is where seeds are started and plants. What's pictured in exhibit 31 is of the vegetable gardens and grapevines. Applicants grow vegetables. The trails go throughout the park, there is probably 1.5 miles of trails that can be walked and see the park. It goes around the perimeter of the park.

Mr. Brown asked if the trails have been substantially improved recently.

Mrs. Homan stated yes. Applicants continue to work on the trails to make them wider and friendly to walk on.

Mr. Brown asked if opening the park to the public is a recent occurrence.

Mrs. Homan stated yes.

Mr. Brown asked how long applicants have been doing this.

Mrs. Homan stated for the last year or two it has been opened to the public.

Mr. Brown stated on exhibit 32, there are numbers on the map. Mr. Brown asked applicants to describe, in reference to numbers, what those locations are.

Mrs. Homan stated number 1 is the residence, number 2 is the pavilion, number three is the north Koi pond and the dry hydrant. Number 4 is the east Koi pond. Number 5 is the restrooms and the wetland sanitation system. Number 6 is the south pasture and prairie restoration site. Number 7 is the saw mill and resource area. Number 8 is the south pond. Number 9 is the timber management and wildlife preserve area. Number 10 is the wetland habitat site. Number 11 is Reeders creek. The blue strips show where the parking is located.

Mr. Brown asked applicants to talk about the investment they have put in to the facility to make it enjoyable for applicants and the public. (exhibit 33)

Mrs. Homan stated that applicants have been working on the park for eight years, since 1994, when she and her husband were married there. Applicantís financial commitment has been substantial, in excess of $200,000. Applicants do have a cost share commitment for the next ten years with the timber management. It requires year round maintenance. Applicants also do some community volunteer services.

Mr. Brown asked what the applicants and the park are affiliated with. (exhibit 34)

Mrs. Homan stated applicants are affiliated with a number of clubs and grass roots organizations as listed.

Mr. Brown asked if exhibit 35 is the adopt a highway resolution.

Mrs. Homan stated yes. Applicants adopted a portion of Highway 124 west. Applicants keep the area cleaned up, and pick up garbage.

Mr. Brown asked applicant what exhibit 36 is.

Mrs. Homan stated it is the feature in the Columbia Visitors Bureau manual for 2001.

Mr. Brown asked if this is something that applicants paid for as advertising.

Mrs. Homan stated no.

Mr. Brown asked if applicants were asked to use that photograph.

Mrs. Homan stated yes.

Mr. Brown stated that exhibit 37 is entitled technical assistance. Mr. Brown asked applicants what kind of technical assistance they have got.

Mrs. Homan stated that applicants talk to the Agriculture Department about their alternative agriculture practices and The Conservation Department about the ponds. Applicants have talked to the Office of Minority Business to be certified as a minority owned business and a woman owned business. Applicants have worked with natural resources and tourism for the magazine and the Transportation Department for the Adopt-A-Highway program.

Mr. Brown stated that the next slide (exhibit 38) has some relevant facts about Boone County history.

Mrs. Homan stated that Boone County is comprised of about 440,000 acres, it talks about how agriculture has been a stable part of Boone County for a long time. The farmers brought electricity to Boone County and agriculture used to be the largest industry in Boone County.

Mrs. Homan stated regarding exhibit 39. Agriculture is no longer the largest employer. It is now the University of Missouri. The farm population is on the decline and farm acreage has declined over 22,000 acres from 1992 to 1997. Green space and agriculture land is being lost.

Mrs. Homan stated regarding exhibit 40, shows a tremendous population growth that has spurred both in Boone County and Columbia. Both are exceeding a third of its growth. This growth is stressing the infrastructures, schools, social services and resources available.

Mr. Brown asked about the Boone County smart growth coalition and what it entails. (exhibit 41)

Mrs. Homan stated that the smart growth coalition is a grass roots organization that is very concerned with protecting high priority lands and also for preserving natural areas and agricultural lands, so applicants affiliated with them.

Mr. Brown asked if applicants had reviewed the Boone County master plan to determine in applicantís own opinion how they fit in to that plan. (exhibit 42)

Mrs. Homan stated yes. There are several goals and objectives in the Boone County master plan that pertains to applicants significantly. Objective 21 talks about preservation of agricultural industry. Goal 31 talks about balance development and natural environment. Objective 32 is about protecting sensitive environmental features of Boone County. Objective 34 encourages environmentally clean industries, such as Alpine Park. Goal 35 talks about examining how best to meet the needs for parks, recreation and open space in Boone County.

Mr. Brown asked Mrs. Homan to explain agricultural alternatives. (exhibit 43)

Mrs. Homan stated that it is a practice that has only come on the face about the last 10 to 20 years. It mainly talks about clean agriculture practices without the fertilizers and without losing topsoil for cropping. It is a clean industry. It talks more on the soil conservation, wildlife habitat, and water protection.

Mr. Brown asked applicants if there are other facilities in Boone County that do similar things that the Alpine Park does.

Mrs. Homan stated that the Pinnacles Youth Park is located about 2 miles from applicants. It was initiated in 1965. (exhibit 44)

Mr. Brown asked if it was zoned A-2.

Mrs. Homan stated yes. It recently expanded an additional 17 acres in 1996; restrooms were installed in 1999. The Pinnacles Youth Park has activities such as hiking, picnics, weddings, receptions, and youth group camping. The camping is only for the youth groups. For the youth groups there are no fees, but do charge fees for the weddings and other activities.

Mr. Brown asked applicants if Pinnacles Youth Park is an example of one of the area parks that is used in the same way that applicants are using their land.

Mrs. Homan stated yes.

Mr. Brown asked Mrs. Homan to explain Chapel View Stables. (exhibit 45)

Mrs. Homan stated that Chapel View Stables is another agriculture alternative example. They won the Columbia Chamber of Commerce 2000 small business of the year award; they are an equestrian service. But they also do alternative agriculture in the form of weddings, birthday parties, family reunions, company planning retreats and picnics.

Mr. Brown asked if they were zoned A-2.

Mrs. Homan stated yes.

Mr. Brown asked if this were another example of someone in the area that does the same thing applicants do and are in compliance with the zoning regulations.

Mrs. Homan stated yes.

Mr. Brown asked applicant if there were another facility.

Mrs. Homan stated that another good example is the Walters-Boone County Historical Museum. They area zoned A-1 under the City ordinances and they do weddings and special events and charge for them.

Mr. Brown asked applicant if A-1 is the equivalent of A-2 in the County.

Mrs. Homan stated yes, it is agricultural.

Mr. Brown asked if they do the same type things that applicants do at Alpine Park.

Mrs. Homan stated yes.

Mr. Brown asked if anyone has contended that the Museum is not located in a park as far as applicant knows.

Mrs. Homan stated not that she is aware of.

Mr. Brown asked applicants if they were aware of Shelter Insurance Gardens. (exhibit 47)

Mrs. Homan stated yes.

Mr. Brown asked applicant how Shelter operates.

Mrs. Homan stated that Shelter Gardens operates in much the same way applicants do. They have water features, weddings, musical venues, and the same type of activities.

Mr. Brown asked if Shelter Gardens charged for the use of those facilities.

Mrs. Homan stated yes, she knows they charge $250 for weddings.

Mr. Brown stated that if applicants were in violation, it would also have to be true that if Shelter Gardens were located in the County under the County zoning ordinance, they would be in violation as well.

Mrs. Homan stated yes, they would.

Mr. Brown asked applicants what exhibit 48 entails.

Mrs. Homan stated it is a new place that recently opened up. Students refer to it as Shernís Party Cove. It specializes in college and student events; it also has an open-air pavilion.

Mr. Brown asked if Shernís was zoned A-2.

Mrs. Homan stated yes.

Mr. Brown asked applicants what is Cooperís Landing. (exhibits 49 and 49A)

Mrs. Homan stated that Cooperís Landing is zoned agriculture. It began as a bait shop and now it functions with a campground, lodge, restaurant, special events, a boat ramp and are planning to install a planned service dock with gas pump.

Mr. Brown asked applicant to go over exhibit 50.

Mrs. Homan stated that it shows all the parks located in the Columbia Park system. They have approximately 45 parks. Boone County has two parks that they manage. One of those parks is part of the MKT Trail.

Mr. Brown asked if El Chaparral is also one of those Boone County parks. (exhibit 51)

Mrs. Homan stated yes. Mrs. Homan stated that exhibit 51 is a picture of the pavilion at El Chaparral.

Mr. Brown asked if applicants looked at the budget for that.

Mrs. Homan stated yes, they recently looked at the budget and as far as she could tell, the shelter house has funds for deconstruction.

Mr. Brown stated meaning it was going to be taken down.

Mrs. Homan stated that is her understanding.

Mr. Brown asked Mrs. Homan to go over the statistics on exhibit 52.

Mrs. Homan stated that in addition to the two County owned parks, El Chaparral and part of the MKT Trail, there are also 3 State parks, 7 conservation areas, 1 national forest, and 1 privately held park in Boone County.

Mr. Brown asked Mrs. Homan to explain the surrounding communities on exhibit 53.

Mrs. Homan stated that recently, surrounding communities have recognized the need for parks and so theyíve enacted parks and recreation tax to help support these areas.

Mr. Brown asked applicants if it was their contention that a park such as the applicants and the use they are putting it to is a permissible use under the A-2 zoning for Boone County.

Mrs. Homan stated yes.

Mr. Brown asked if Alpine Park and Gardens, the way it has been operating in recent years, if it was operated in the same way parks are generally run, based on applicantís experience in the area. (exhibit 54)

Mrs. Homan stated yes.

Mr. Brown asked if it also satisfies a need for additional green space. (exhibit 55)

Mrs. Homan stated yes.

Mr. Brown asked if it has programs that promote clean air and water, soil conservation and wildlife.

Mrs. Homan stated yes.

Mr. Brown stated that there are two ways that applicants do this. One is to charge a flat rate if someone wants to reserve the park. The other way is they can just pay if they want to hire applicants for labor. These are two distinct ways of using the park.

Mrs. Homan stated that is correct.

Mr. Brown asked applicant if they had weddings and things there every night.

Mrs. Homan stated no.

Mr. Brown asked how often.

Mrs. Homan stated it varies. Applicants had eleven events there last year.

Mr. Brown asked what days of the week these events primarily occur.

Mrs. Homan stated primarily on Saturday.

Mr. Brown asked if there was a cut off time that applicants try to observe.

Mrs. Homan stated applicants try to push people to have their events during the daylight hours. Some events run over a little.

Mr. Brown asked if there have ever been any fights where law enforcement had to be called to file a disturbance.

Mrs. Homan stated applicants have had one called for noise disturbance.

Mr. Brown asked if it involved any violence.

Mrs. Homan stated no violence and no citations were issued.

Mr. Brown asked if applicants have taken steps to decrease the noise.

Mrs. Homan stated yes. Applicants are planning blocks, moved the music, talk with who is providing the music and try and set the level. It seems to have worked.

Mr. Brown stated there has been discussion of the conditional use permit and asked applicants if they applied for the conditional use permit because applicants were told by the Directorís office that this was one way of solving the problem that they were having with applicants.

Mrs. Homan stated yes.

Mr. Brown asked if applicants learned after consultation with Mr. Brown, that under the zoning ordinance, applicants didnít have to have a conditional use permit because it is used consistent with the ordinance.

Mrs. Homan stated yes.

Mr. Brown stated he would like to offer exhibits 1 through 55, which are exhibits in the Alpine Park & Gardens book. Since there were no objections, the back-up materials in the green folder are not necessary.

Chairperson Rootes entered the exhibits in to the record.

Witnesses for applicant: Brent Voorheis.

Witness was sworn in.

Mr. Voorheis stated he was soon to be a 49-year resident of northwest Boone County. For the last 16-years Mr. Voorheis stated he has served on the Harrisburg School Board, the last 7 or 8 years he has been President of the School Board and has been to the park.

Mr. Voorheis stated what he would most like to talk about is the new building that the Harrisburg School District recently built about a year ago and needed to be landscaped. Mr. Homan came to the school board and said that he would be honored to help the school district landscape the building. Mr. Homan informed the board that he didnít want to do the work, but wanted to get the kids involved to do the work and Mr. Homan would supervise them and steer them in the right directions.

Mr. Vooheis stated that in the school district there is a program that is called "serve to learn" which is a service learning program. There are a number of students that have done a lot of activities within the community. The current project they are working on now is the establishment of a Harrisburg Community betterment organization. Mr. Homan met several times with the serve to learn kids and they worked out a landscape on paper of where they were going to sod and plant various plants. Mr. Homan was able to purchase the materials at wholesale for the school district and set aside his time to come up and work with those kids and tell them why they were planting each plant where. For instance a certain plant would grow so high, or it was a dwarf plant and wouldnít get in the way of the building. Mr. Homan told the kids where the downspouts were and what plants to place there that could take the excess moisture that was coming in to the ground. Mr. Homan helped sod and plant all of the plants then went back and mulched it. It has been a great asset to the building. Mr. Homan has been involved in a few projects like that. He has also been an advisor to the schoolís outdoor classroom, Elaine Calloway, who is the outdoor classroom lesion with the Missouri Department of Conservation. They have stated that Harrisburg has one of the nicest outdoor classrooms in the State. You could say that the school is trying to do, on a small scale with the outdoor classroom, the same thing Mr. Homan is trying to do on a large scale. There are prairie grasses, wildflowers, trees, they plant seedlings, have a water shed and amphitheater. One of the major activities the school had was at Halloween. There was a haunted house in the outdoor classroom. It provided an alternative for the kids instead of going trick-or-treating, in todayís times you wonder whose house you are going to. The serve to learn kids had a Halloween event; there was a straw maze, games and activities.

Member Bowne asked Mr. Voorheis if he was calling the outdoor classroom a park.

Mr. Voorheis stated no; it is an outdoor classroom. Mr. Voorheis stated he canít call it a park, because at school, they are in the classroom business, not the park business. Instructors make use of the resources, for example, the science teacher will take kids down to the watershed and they will take water samples. There are also fish in there and the students study the wildlife. You can learn more touching and feeling something than you can by seeing it on a screen or seeing it in a book. Also within that outdoor classroom is a cemetery. It was a group of people that came through the Harrisburg area around 1860; there are some tombstones there that say 1860. They came through on a wagon train and a number of the tombstones reflect that they died of cholera. Most of the elementary teachers tour that; especially the fourth grade because that is the class that really works on Missouri history. The students go through the Oregon Trail and talk about the hardships that the people incurred as they were traveling to the new west. So they tour the outdoor classroom and talk about the cemetery, the hardships, and the wagon trains.

Mr. Voorheis stated they also have a history log in which they talk about the rings on the trees and how old the tree is. There are two grindstones that Bill Randall donated to the outdoor classroom. They came off Perche creek in northern Boone County where they used to grind meal. The kids see those stones with the grooves cut in them where you pour the grain in the middle and centrifugal force worked the flour to the outsides. Kids donít see things like that anymore. The outdoor classroom has been a wonderful resource and children from the service learning group that have also toured Alpine Gardens.

Member Bowne asked if the public could go through the outdoor classroom.

Mr. Voorheis stated yes, it is open 365 days a year. There are a lot of kids in the summer during little league; the ballpark is adjacent, they walk through it. It is used a lot. It is paved, the school was able to get a grant for handicapped accessibility, it is paved and wide enough for wheelchairs to travel it.

Mr. Brown stated that Mr. Voorheis has been at Alpine Park. Mr. Brown stated that the Board wants to know whether it is just a yard or a farm, or whether it has features as a park. Mr. Brown asked Mr. Voorheis his opinion.

Mr. Voorheis stated it definitely has features of a park. Mr. Voorheis stated he was there last fall and was amazed at the new waterfall, it is beautiful.

Mr. Brown asked Mr. Voorheis if he would encourage this alternative agriculture.

Mr. Voorheis stated that you can't say anything about it except that it is beautiful and doesnít see how anyone can discourage it. Mr. Voorheis stated he lives in northwest Boone County and he has a farm. He, his wife, and parents work on 700-acres and have a beef cattle operation. That is part of the traditional farming that everyone thinks about. This park is another alternative. Alternative farming is a big buzzword now. No longer is it beef cattle and hogs; no longer is it corn and soybeans. No longer do we have conventional agriculture in the United States, there has to be other activities involved to maintain an agriculture base. The Department of Agriculture in Washington says a farm is 5-acres or more. We all know you canít make a living on 5-acres, you canít make a living on a 700-acre farm. You have to get bigger or you have to diversify or you have to find an alternative. Mr. Voorheis stated he considers this an alternative.

Witnesses for applicant: Marjorie McDermott.

Witness was sworn in.

Mr. Brown stated he wanted to call Ms. McDermott to testify because she has been to the park and also because she is involved with the Missouri native plant society.

Mr. Brown asked Ms. McDermott to tell a little about who she is and what she does and tell a little about the facility itself and her feelings on it.

Ms. McDermott stated that she has known applicants for 10-years and has never seen two smarter more sincere, hardworking couple in her life. Ms. McDermott stated she is very fond of the applicants and that is why she is here. Applicants are dedicated to what they are doing in preserving what Ms. McDermott believes in, which is the natural County. There are so many businesses and so much expansion in the County that is strictly commercial. For the applicants to be doing the park is adding much to Boone County and doesnít know what the problem is.

Ms. McDermott stated she has been out there several times and it is really a very high-class operation. There is not very much of that around that is backed by big corporations. Applicants have put sweat equity in this and have made it a really charming place. If you havenít been out there, Ms. McDermott states she thinks you should go just for the experience of it. Ms. McDermott stated she believes the applicants are doing a great thing for Boone County, which is terribly important.

Mr. Brown asked applicant if she was involved with Missouri native plant society.

Ms. McDermott stated yes.

Mr. Brown asked Ms. McDermott to tell a little what that is.

Ms. McDermott stated that the native plant society is dedicated to preserving our natural habitat and encouraging people to use the native plants the society has for their own use. The society goes around and helps people plan their gardens as does the wild ones, Ms. McDermott stated she belongs to that too. The society also maintains a little garden at Rock Bridge State Park, just to keep the County looking good like it should.

Mr. Brown stated that is all the applicants have at this point.

Present: John Patton, County Attorney, Representing Director, Stan Shawver.

Mr. Patton stated that this is a preliminary matter, not the kind of hearing that the Board has ever done before. The Board has primarily dealt with issues concerning the grant or denial of variances from the zoning regulations or the subdivision regulations. What we are dealing with here tonight is another part of the statute dealing with the Board of Adjustment and that is of the part that deals with the property owners right to appeal a decision made by the Director of Planning and Building Inspections in Boone County. That is what this appeal here tonight is about. The testimony that the Board is hearing from both sides is for the purpose of the Members in making a decision in whether Mr. Shawver erred an enforcement decision he has made. That enforcement decision has nothing to do with the park or forest preserve that the Members have heard about from the Homanís and their supporters. This is not about whether the Homanís can have a park. Clearly they can, that is not in dispute. This is not about whether the Homanís can have a forest preserve. Clearly they can under the regulation. That is not in dispute and that is not what Mr. Shawverís decision was about. What the issue here tonight is and what he intends to illicit testimony from the Homanís and Mr. Shawver on is whether the Homanís are conducting a business on the property in conjunction with the park and forest preserve. The business being that the applicants are soliciting people to come out and use the property for purposes of weddings, wedding receptions, reunions and parties in exchange for payment for the use of the property and also in exchange for services that the Homanís provide in conjunction with those events and for secondary types of goods they provide to the people for those events.

Mr. Patton stated that in terms of the background, Mr. Patton stated he didnít think this was in dispute, the Homanís made an application for a conditional use permit in 1999. There may be a dispute about whether they were told by Mr. Shawver to get it; or whether they applied for it under their own volition, in order to conduct these business activities on their property. Evidence will show that the conditional use permit was issued on certain conditions. One of the key conditions being that the applicants would provide 60 dust-free parking spaces. In Boone County that means it must be a minimum of a chip seal surface or better. Another condition was that the activities for the weddings and other events would not go on beyond dusk. There were other conditions such as camping, but those are not in dispute. The applicants got their permit and one of the things that the permit provided was that a year later it was to be reviewed by the County Commission for compliance. That review came up in October or November 2000. At that time, the Commission found that the applicants had not put in all the required chip seal parking and that they were reportedly having events after dark on a number of occasions. The permit was suspended at that time in conjunction with the review. The Homanís applied for rezoning of the property to legitimize their uses, that request was also denied.

Mr. Patton stated that now a lawsuit was filed against the County and that is pending. Now the Homanís are challenging the decision that was made by Mr. Shawver several years ago that the Homanís use for the property for this business activity without a conditional use permit is not unlawful under the County zoning regulations.

Mr. Patton presented folders to the Members.

Mr. Patton stated that what he intended to demonstrate is that there isnít any dispute their right to use the property for a private park or to agriculture activity or to have a forest preserve, this is not the problem. The problem is the business use of the property.

Mr. Patton recalled Mrs. Homan to testify.

Witness is still under oath.

Mr. Patton asked Mrs. Homan if exhibit D1 was a copy of the conditional use permit application.

Mrs. Homan stated yes.

Mr. Patton asked if this was done in 1999.

Mrs. Homan stated yes.

Mr. Patton asked Mrs. Homan if the exhibit marked D2 is the actual permit.

Mrs. Homan stated yes.

Mr. Patton asked applicant, regarding the conditions, where it says the applicants are to have parking area to provide for a minimum of 60 vehicles. Mr. Patton asked if Mrs. Homan remembered that condition.

Mrs. Homan stated yes.

Mr. Patton stated there was a discussion about that and asked if applicant remembered that this is what everyone decided was a good number.

Mrs. Homan stated she did not remember how they arrived at that number.

Mr. Patton asked if Mrs. Homan remembered testifying before the Commission saying that the events would involve 100 to 200 people on occasion.

Mrs. Homan stated yes.

Mr. Patton stated that applicants did not make any objection to the 60 parking space requirement and asked Mrs. Homan if that was correct.

Mrs. Homan stated she believed the number was calculated but applicants were not told.

Mr. Patton stated that applicants did not take an appeal from their decision to require the 60 spaces.

Mrs. Homan stated applicants did not appeal.

Mr. Patton stated to the Board that those documents are not in the packets. Mr. Patton circulated the permit application and conditional use permit to the Board.

Mr. Patton stated that applicants are not disputing that they are running a business. Mr. Patton asked Mr. Homan if he had a landscaping business there.

Mrs. Homan stated yes.

Mr. Patton stated that applicants also have a business of putting on events as in weddings, family reunions, wedding receptions and banquets and asked applicants if this was correct.

Mrs. Homan stated yes, it is park oriented.

Mr. Patton asked if exhibit D3 is a copy of the business card for Alpine Park.

Mrs. Homan stated yes.

Mr. Patton stated that applicants advertise the business. Exhibit D4 is a copy of photocopy of a yellow page listing.

Mrs. Homan stated yes.

Mr. Patton stated that applicants do advertise in the yellow pages for the Alpine Park and Garden as a business promoting the use of the facility for weddings and banquets. Mr. Patton asked if that was correct.

Mrs. Homan stated yes.

Mr. Patton stated that applicants have a website for the facility. Mr. Patton stated applicants had one event, which was a wedding show and asked Mrs. Homan if that was correct.

Mrs. Homan stated yes.

Mr. Patton stated there was a commercial for that advertising the wedding show at the facility and asked Mrs. Homan if that was correct.

Mrs. Homan stated yes.

Mr. Patton stated he didnít bring any pictures of that, but applicants do acknowledge that, correct?

Mrs. Homan stated yes.

Mr. Patton asked with regard to the business, applicants have made a fictitious name with the Secretary of States Office, is that correct?

Mrs. Homan stated yes.

Mr. Patton stated that exhibit D5 is a copy of that. Mr. Patton stated that basically, applicants have a husband and wife partnership doing business under a fictitious name with Alpine Park. Mr. Patton asked if that was correct.

Mrs. Homan stated yes.

Mr. Patton stated that applicants testified before that when applicants file their taxes, applicants file a separate Schedule C, which is a statement of business of income and losses and includes the gross business income and deductions that applicants take. Mr. Patton asked applicants if they had a separate one for Alpine Park and Gardens.

Mrs. Homan stated yes.

Mr. Patton stated that applicants were not asked to bring their tax returns in, but applicants do acknowledge that this is done. Applicants file one Schedule C for the landscaping business and one Schedule C for the Alpine Park and Gardens.

Mrs. Homan stated that was correct.

Mr. Patton stated exhibit D6 is a flier the applicants had for an event called "A touch of the blues". Mr. Patton asked if that was correct.

Mrs. Homan stated yes.

Mr. Patton stated that applicants acknowledge that they had an event and exhibit D6 is a copy of their flier. Mr. Patton asked if that was correct.

Mrs. Homan stated yes.

Mr. Patton stated that exhibit D7 is a flier from another event called "Sunset at the park", featuring the Chump Change band.

Mrs. Homan stated yes.

Mr. Patton asked if this was a BYOB type of event, where people could bring their own liquor.

Mrs. Homan stated yes.

Mr. Patton asked if applicants had a sandwich bar.

Mrs. Homan stated yes.

Mr. Patton stated that applicants had an open house event. Exhibit D8 is a flier of the Open House that was held in 2001.

Mrs. Homan stated yes.

Mr. Patton stated to the Board that a copy of this is in their packets.

Mr. Patton stated that applicants had a wedding show that was mentioned previously. Mr. Patton asked applicants if this was correct.

Mrs. Homan stated yes.

Mr. Patton stated that Exhibit D9 is a copy of the flier or a thank you in conjunction to that wedding show.

Mrs. Homan stated this was a list of the vendors.

Mr. Patton stated that applicants charged Formally Yours Bridal Boutique, whom was a sponsor for that event. Mr. Patton asked if that was correct.

Mrs. Homan stated yes.

Mr. Patton stated that applicants charged Formally Yours for use of the park. Mr. Patton asked if that was correct.

Mrs. Homan stated no.

Mr. Patton asked applicant if they testified that they charged Formally Yours a fee for that.

Mrs. Homan stated no.

Mr. Patton asked if applicants charged the vendors fees for use of the park.

Mrs. Homan stated that Formally Yours charged the vendors.

Mr. Patton asked if people who came to the park were charged an admission fee.

Mrs. Homan stated yes, $5.00.

Mr. Patton asked if Formally Yours paid applicants a fee for the use of the park, then in turn charge the vendors.

Mrs. Homan stated no. They split the gate; they each got $125.00.

Mr. Patton stated that applicants produced copies of bookings that applicants had for events in the last three years. Mr. Patton asked applicants if the sheets marked exhibit D10 are copies of booking sheets for events at the Alpine Park.

Mrs. Homan stated yes.

Mr. Patton stated there are booking sheets for family reunions and weddings.

Mrs. Homan stated yes.

Mr. Patton asked if these occurred in the year 2000.

Mrs. Homan stated yes.

Mr. Patton stated that the fees that are being charged are roughly $200.00 an hour as a base fee for the park.

There are other things that applicants provided for instance ice, vegetables, sugar, pans, a half keg, and soda. Mr. Patton asked applicants if they provide those things in conjunction with the event.

Mrs. Homan stated that the client provided this.

Mr. Patton asked if the other things were provided by the applicant.

Mrs. Homan stated she believed so.

Mr. Patton stated that the event was scheduled in September 2000. Another event was scheduled in which charges were run up to approximately $1775 for an event that occurred in July 1999.

Mrs. Homan stated yes.

Mr. Patton stated that there were a number of events in each of the years. Mr. Patton asked applicants to look through the papers marked D11 for events that occurred in 2001.

Mrs. Homan stated that those events would occur in 2002.

Mr. Patton asked applicants if they have already scheduled events for 2002.

Mrs. Homan stated yes.

Mr. Patton stated that applicants have scheduled about 10 events for 2002.

Mrs. Homan stated approximately, yes.

Mr. Patton asked what exhibit D12 is.

Mrs. Homan stated they were event bookings for 2001.

Mr. Patton asked if these were events that applicants conducted for 2001.

Mrs. Homan stated yes.

Mr. Patton stated that applicants had one on May 25, 2001.

Mrs. Homan stated yes.

Mr. Patton asked if this was a wedding event.

Mrs. Homan stated she believed so.

Mr. Patton stated that another event was scheduled for May 26, 2001.

Mrs. Homan stated yes.

Mr. Patton stated that there was about an $850 fee for that one.

Mrs. Homan stated yes.

Mr. Patton stated that there was another event in June with a fee of about $465. Mr. Patton asked if this was correct.

Mrs. Homan stated yes.

Mr. Patton stated that in many of the events that applicants are doing, some of these events applicants are supplying various goods and services. Mr. Patton asked if this was correct.

Mrs. Homan stated yes. Clients rent from other places as well as the applicants.

Mr. Patton stated that in the forms from last year, there are things that applicants rent like a grill, fryer, carving station, chaffing dish, serving ware, coffee maker as well as tables and chairs, table cloths, table decorations. The customers have the option to buy all sorts of different services and rent goods from the applicants. Mr. Patton asked if that was correct.

Mrs. Homan stated that a lot of those items came from Lindsay Rentals. Applicants donít have table cloths to cover all the tables, this gives the client an idea of what they could get like tablecloths, applicants can get them from Lindsay Rentals for the price listed for they could get them from US Rents It.

Mr. Patton asked if that was included in the price.

Mrs. Homan stated no; if applicants have to rent something then that is added.

Mr. Patton stated that the figures on the forms speak for themselves. If some of these rental items are included in the total cost, it would be a fair assumption that applicants are charging the client for the use of these things.

Mrs. Homan stated that there are certain things that are standard like the tables and chairs. Applicants do provide tablecloths for specialty tables if there is a wedding; applicants provide table cloths for the cake table, the registration table. There are some things that are standard.

Mr. Patton stated that applicantís charge for staff time.

Mrs. Homan stated yes.

Mr. Patton stated that this is an option that the clients have to purchase.

Mrs. Homan stated if the clients wish for the applicants to set up the event, then yes.

Mr. Patton stated that in looking at the forms booked for 2002, it looks like the applicants have changed things a little. Applicants are now providing package deals where clients can buy package 1, where it will cost a base price of $600 with a minimum of three hours.

Mrs. Homan stated yes.

Mr. Patton stated that package 2 is a five hour event with the cost of $800. Clients have a choice that there are other things clients could buy in conjunction with the event as in goods and services.

Mr. Homan stated that there is another sheet that has things in which applicants use as a budgetary sheet if someone wants to do the catering themselves or provide serving utensils, cups or whatever. So many people come out that forget these things. By providing a sheet that applicants can see the cost associated with it, they can create their budget instead of taking $200 and buying the little things can add up. Rings for table cloths an so fourth, there are many options, clients can go to the paper factory and buy tablecloths and applicants let clients know that there is a cost associated with it.

Mr. Patton stated that the applicants are running a wedding business on the park. Mr. Patton asked if this was correct.

Mr. Homan stated that the park is the primary use of the ground. Weddings are an incidental use of the park.

Mrs. Homan stated that it is a part of it, but not the main business by any means.

Mr. Patton asked applicants that aside from the landscape business, applicants arenít running any kind of other business out there.

Mrs. Homan stated that applicants receive funds from the timber management.

Mr. Patton asked if this was a part of the landscaping business.

Mrs. Homan stated it is part of the park.

Mr. Patton asked if this was scheduled under the Schedule C for Alpine Park and Gardens or under the Wood Unlimited.

Mr. Homan stated it would be under C if it were a cash payment.

Mr. Patton stated that he noted on the forms that applicants say that events normally run daytime hours unless special arrangements are made for evening hours.

Mrs. Homan stated yes.

Mr. Patton asked what the special arrangement is for evening hours.

Mrs. Homan stated that is when applicants talk to the client about the noise level and what has to be done as far as clean-up. How long the clients have to permit to get their gifts together to get out of the park by a certain time. Applicants talk about all of that, particularly the music. If clients have a DJ or a band, that level has to go way down.

Mr. Patton stated that last year, when the conditional use permit was suspended, and one of the conditions had been that events cease at dusk, however, applicants would have those events anyway in the evening.

Mrs. Homan stated there were three events that ran over.

Mr. Patton stated that he would like to enter in to the record exhibits up through D13 and to be made as evidence.

Chairperson Rootes entered the exhibits in to the record.

Witnesses for County: Stan Shawver, Director, Planning and Building Inspections.

Witness was sworn in.

Mr. Patton asked Mr. Shawver if he or staff at some point, rendered a decision that the Homanís use of the property on Proctor road, which is being called the Alpine Park and Gardens, was being used in violation of the County zoning ordinances to run a wedding, banquet, event type of commercial business.

Mr. Shawver stated the department notified applicants in October 2001 that the wedding show was in violation of the zoning regulations and reminded them that their conditional use permit had been suspended.

Mr. Patton asked Mr. Shawver what his recollection was of how the conditional use permit came about.

Mr. Shawver stated that in 1997, Mr. Homan came in to the office and sat down with staff and spoke on a couple occasions inquiring what would be necessary to have a facility which has evolved in to the Alpine Park and Gardens. Mr. Homan did not mention a park or garden, what he was inquiring about was a wedding facility, something with outdoor weddings, reunions perhaps with a pavilion, and things of that sort. It was a very informal discussion at that point. In January of 1998, Mr. Homan came in and very specifically asked whether the activity of a wedding and reunion center would qualify as a conditional use permit for an outdoor recreational facility under the A-2 zoning classification. At that point, Mr. Shawver stated he told him he would have to give it a little thought and consult with the County Attorney as to whether it would fall under the classification of an outdoor recreational facility.

Mr. Shawver stated in March 1998, the department sent Mr. Homan a letter stating that after consultation with the County attorney, the department did not feel that the proposed use of a wedding and reunion center would fit under the outdoor recreational facility within the A-2 zoning district. The department suggested that the use more closely matched those found under the REC recreational zoning district or C-G general commercial zoning district. Mr. Shawver stated he went on to advise the applicants that the best thing to do would be to proceed with a planned commercial application. Mr. Shawver stated he doesnít recall that there were other discussions until the following year. Mr. Homan came in during the summer of 1999 and indicated that he was going to file an application for a conditional use permit for an outdoor recreational facility. Staff met with applicants on several occasions and discussed the strategy of submitting an application. There were a number of cases that were pending at the Planning and Zoning Commission that were taking a substantial amount of time and felt it would detract from other applications that might be on the same agenda. Staff talked about the best time to submit the application would be in October 1999. The application was submitted before the Planning and Zoning Commission.

Mr. Patton asked aside from the determination that staff made when the applicant first came in, it looks like Mr. Shawver was referring to a letter that was sent to Mr. Homan.

Mr. Shawver stated that is correct.

Mr. Patton asked Mr. Shawver if he had a problem with the letter being entered as an exhibit.

The letter from the director to Mr. Homan is marked as exhibit D13.

Chairperson Rootes entered exhibit D13 in to the record.

Mr. Patton stated after that point, the Homanís applied for the conditional use permit.

Mr. Shawver stated that is correct.

Mr. Patton stated that eventually the Planning and Zoning Commission turned the application down, but the County Commission approved the application.

Mr. Shawver stated that was correct.

Mr. Patton stated there were conditions put on the permits. Following that, did the department make any decision that the use of the property was or was not in violation at any point in time.

Mr. Shawver stated that one of the conditions the County Commission placed on the permit was a one-year review. The County Commission conducted a review of the permit and found that not all the conditions had been complied with. The County Commission suspended the permit in the fall of 2000. During the summer of 2001 staff received reports that activities were taking place on the property.

Mr. Patton asked what Mr. Shawver meant by activities.

Mr. Shawver stated weddings. The property was being used as an outdoor recreational facility as was originally permitted under the conditional use permit. Staff received complaints from neighbors that the Homanís were actually conducting operations despite the permit being suspended. Staff noticed that the wedding show that has been discussed was advertised. Staff notified Mr. Homan before the wedding show was conducted that the wedding show would be a violation of the zoning regulations as it would be a commercial activity. Following that event after the applicants had it, staff notified the applicants that they had violated the zoning regulations.

Mr. Patton stated that there has not been any litigation or prosecution of the applicants instigated at this time.

Mr. Shawver stated that is correct.

Mr. Patton stated the applicants have filed this appeal to challenge the directorís determination that the applicantís conduct of this wedding/banquet business that applicants have is permissible under the existing zoning.

Mr. Shawver stated that is correct.

Mr. Patton asked Mr. Shawver if he had a copy of the zoning regulations. Mr. Patton stated he didnít know if they have been made a part of the record or not.

Mr. Patton marked the zoning regulations as exhibit D14.

Mr. Brown stated that he would ask that only the two relevant pages be offered in to the record, pages 14 and 15.

Mr. Patton stated he would like to make the whole regulations a part of the record. There is no harm in the Board considering the entire book as opposed to an isolated section.

Chairperson Rootes stated that the entire zoning regulations are to be made a part of the record.

Mr. Patton asked Mr. Shawver if he ever rendered an opinion that the development or use of the property for the park is somehow unlawful in the A-2 zoning district.

Mr. Shawver stated no.

Mr. Patton asked Mr. Shawver if he ever rendered an opinion or taken a position that whatever forestry practice, whether they characterize it as a forest preserve or otherwise, on their property in the A-2 district is unlawful.

Mr. Shawver stated no.

Mr. Patton asked Mr. Shawver if he ever rendered an opinion that any agriculture activity that applicants have conducted in their district is unlawful under the zoning regulations.

Mr. Shawver stated no.

Mr. Patton asked if it was fair to say that the only thing Mr. Shawver has rendered a decision on is that the department considers the operation of this wedding/banquet type of event business that applicants conduct is not permissible under the zoning regulations.

Mr. Shawver stated that is correct.

Mr. Patton asked if it would be fair to say that Mr. Shawverís view is that applicants need the conditional use permit to conduct that kind of business activity as authorized by the Commission.

Mr. Shawver stated either the conditional use permit or proper zoning.

Mr. Patton asked if under the permit have applicants put in the full 60 dust free parking spaces that are required.

Mr. Shawver stated not to his knowledge.

Mr. Patton asked what the purpose is of having that many parking spaces.

Mr. Shawver stated the purpose of the dust free parking is to provide a solid, stable base for vehicular traffic that will be accessing the property. The number was based upon testimony that was given by the Homanís as the number of people they expected. We did not believe that 150 people would all come in individual cars and the Commission selected a number that was approximately half of that.

Mr. Patton asked what was the purpose of the condition on the events ending at dusk.

Mr. Shawver stated that the reason, as he recalls, is because it is a rural area. The site is one-half mile off of the paved road. There is a certain amount of light pollution that people are concerned about in a rural area. When people are in an unfamiliar area there is a possibility for traffic accidents and disturbing the neighborhood in general.

Mr. Patton stated that Mr. Shawver, nor staff, have personally observed after hourís events taking place, but just received complaints about them.

Mr. Shawver stated that one of his staff members has been by there.

Mr. Brown objected, due to hearsay.

Chairperson Rootes stated that the Board could accept if complaints have been made to the department.

Mr. Patton stated that is all the questions he has for Mr. Shawver.

Mr. Brown asked Mr. Shawver that if Shelter Gardens were in the County and someone went to Shelter Gardens and had a wedding, would it violate the zoning ordinance.

Mr. Shawver stated that Shelter Gardens is zoned for commercial use within the City of Columbia. If it had the same zoning within the County that would be appropriate.

Mr. Brown stated that what he is saying is just assume Shelter Gardens were zoned A-2 like Alpine Park and Gardens and they wanted to have a wedding there and they charged for the use of it.

Mr. Shawver stated he could not make an assumption like that.

Mr. Brown asked Mr. Shawver if he agreed that the decision before the Board tonight is whether the use of the property as it has been described fits under A-2, and by reference A-1, whether it is being used as a park and forest preserve. Mr. Brown asked Mr. Shawver if he agreed that this is the issue.

Mr. Shawver stated that the issue is whether a wedding facility and reunion center is a permitted use in the zoning classification of A-2.

Mr. Brown asked Mr. Shawver if he objected to any income producing activity on that land.

Mr. Shawver stated no.

Mr. Brown stated that it can be income producing.

Mr. Shawver stated that the applicants indicated that the forest preserve gets money back, that is income producing, so that is correct.

Mr. Brown stated to be clear that the activity that Mr. Shawver, as the official, are objecting to; is it that the Homanís themselves are involved in promoting and working in the weddings, is that the real problem.

Mr. Shawver stated that the problem is that a wedding business is being conducted on the property. It is being marketed as a wedding business. Whether there is income derived from that or not, that seems to be the main thrust of it; that is their advertising. That is what applicants are taking reservations for.

Mr. Brown stated that maybe that is where we need to follow up and get specific. Mr. Brown asked Mr. Shawver to describe what exactly a wedding business is. It is not the land itself, so what is the business part of a wedding business.

Mr. Shawver stated the wedding business is that applicants are renting out their pavilion, they are providing certain services, and even provide ice, and all the details that go along with the wedding. People have the option of providing their own music, catering or having it done by applicants. It is a wedding business; it is all geared towards weddings.

Mr. Brown stated that it sounds like the focus of Mr. Shawverís objection is that applicants are making money off letting people use the facility for weddings.

Mr. Shawver stated that is not correct.

Mr. Brown asked Mr. Shawver to explain it again. What specifically is his objection?

Mr. Shawver stated the applicants are using the property as a wedding facility, that is not a permitted use in the zoning classification.

Mr. Brown stated that weddings canít take place there.

Mr. Shawver stated that the zoning district regulations say that only those uses specifically listed are permitted. No where in the A-1 or A-2 are wedding or reception centers or reunion centers listed as a permitted use.

Mr. Brown stated that a park and forest preserve is permitted.

Mr. Shawver stated that is correct.

Mr. Brown stated that if the uses that have been testified to fall in the category of park and forest preserve, it doesnít violate the zoning ordinance. Mr. Brown asked Mr. Shawver if that was correct.

Mr. Shawver stated if that is what the Board determines.

Mr. Brown stated that in Mr. Shawverís opinion that would be correct. So the real question here is whether having weddings and gatherings of people in a park is actually a park use.

Mr. Shawver stated no; the question is whether a wedding facility permitted in the A-1 or A-2 zoning district.

Mr. Brown stated that there is the Boone County El Chaparral Park and Boone County charges a fee for people to use that facility.

Mr. Shawver stated not to his knowledge.

Mr. Brown asked Mr. Shawver if Boone County would object if someone wanted to use it for a wedding.

Mr. Shawver stated that is a neighborhood park; there are no organized scheduling activities that Mr. Shawver is aware of. If someone wanted to use it for a wedding or soccer game or anything like that, Mr. Shawver stated that he didnít know if they would check with anyone or if there are any restriction from it.

Mr. Brown stated that the point he wanted to get at is Mr. Shawver admits that parks and gatherings and social events often take place in parks.

Mr. Shawver stated that is correct.

Mr. Brown stated that there is nothing unusual about parks and social events and social gatherings that suddenly deprives some piece of ground from being used as a park.

Mr. Shawver stated no.

Mr. Brown stated that Mr. Patton asked Mr. Shawver several questions about a conditional use permit. How is that relevant to this proceeding?

Mr. Shawver stated that one of the reasons that staff cited the Homanís as being in violation of the zoning regulation was reminding them that their conditional use permit had been suspended. The conditional use permit for the activities that the applicants requested, the weddings and reunions and that the wedding show was beyond the scope of even the conditional use permit.

Mr. Brown stated that a conditional use permit is only necessary if they donít fall under the definition of park and forest preserve. Mr. Brown asked Mr. Shawver if that was correct.

Mr. Shawver stated that was correct.

Mr. Brown stated that the fact that in the past the applicants applied for a conditional use permit really has no relevance to the determination of whether this use falls within the permissible A-2 zoning.

Mr. Shawver stated he would disagree with that.

Mr. Brown asked what is itís relevant.

Mr. Shawver stated it is relevant because the Homanís voluntarily filed for a conditional use permit. The applicants went through the entire process and did not object or appeal the decision to the Circuit Court availed themselves of any other administrative means. Applicants could have done what they are doing here tonight three years ago, but they did not feel that it was appropriate.

Mr. Brown asked Mr. Shawver if he subscribe to the phrase no good deed goes unpunished. Isnít it true the applicants were trying not to make waves and not have to have a lawsuit and that is why the applicants pursued that?

Mr. Shawver stated he could not answer what the applicantís intentions were.

Mr. Brown asked Mr. Shawver if he had any information that suggests that is not why they did it.

Mr. Shawver stated he has no idea.

Mr. Brown asked Mr. Shawver if it were true that agricultural operations like farming is a commercial operation.

Mr. Shawver stated that he thinks the farmers hope that it is, yes.

Mr. Brown stated that in an A-2 zoning, there is a for-profit commercial operation that is anticipated in A-2.

Mr. Shawver stated that agricultural activities are a permitted use in the A-2 zoning district.

Mr. Brown stated that the fact they are done for profit doesnít deprive them of that permitted use.

Mr. Shawver stated that profit is not mentioned in the zoning regulations.

Mr. Brown stated that it seems to him that Mr. Shawver is contending that there is a wedding business out there. Mr. Brown asked exactly where it was located on the property

Mr. Shawver stated it takes place in the pavilion area, the gardens around it, the patio area, Mr. Homan has indicated that theyíve had some ceremonies at the Koi pond, Mr. Shawver stated he cannot vouch for that.

Mr. Brown stated that most businesses have offices. Mr. Brown asked Mr. Shawver if the wedding business had an office anywhere.

Mr. Shawver stated he didnít know.

Mr. Brown asked Mr. Shawver, speaking as an official involved in zoning enforcement, if there was any reason as a policy standpoint why Boone County as a County should want to discourage developments of park and forest preserves.

Mr. Shawver stated no.

Mr. Brown stated that Mr. Patton mentioned some reference to BYOB and things like that. It is not uncommon for beer to be served and sold in parks. Mr. Brown asked Mr. Shawver if that was correct.

Mr. Shawver stated he could not answer what is common.

Mr. Brown asked Mr. Shawver if he had ever been to Cosmo Park.

Mr. Shawver stated yes.

Mr. Brown asked if they sold beer there.

Mr. Shawver stated that the City of Columbia operates a concession stand and they sell beer there out of their own license.

Mr. Brown asked why the County insisted on 60 paved spaces when the conditional use permit could have been revoked at any time. Mr. Brown asked why that was important that the 60 spaces be paved before a final conditional use permit was issued.

Mr. Shawver stated that the County does not look at a conditional use permit application as though it may be revoked. The regulations do provide for that, but the County likes to look the requests as though the are all going to be successful.

Mr. Brown stated that the conditional use permit that the applicants were issued specifically contingent on several factors.

Mr. Shawver stated that is not unusual for conditional use permits.

Mr. Brown stated that it was true in this case.

Mr. Shawver stated that is true.

Mr. Brown stated he was finished questioning Mr. Shawver.

Mr. Patton stated he had no further questions or testimony.

Mr. Brown stated he had no further testimony but would like to make a closing statement.

Mr. Patton stated to the Board Members that there is a whole act of dealing with administrative procedures and this is a case that is being recorded by a court reporter and it is kind of a quasi judicial proceeding. One of the requirements if either party desires to appeal the Boardís decision further is that the Board enter written fact-findings and legal conclusions concerning their decision. The counselís donít expect the Board to do that. Customarily the lawyers will prepare the proposed set justifying their position and the decision they want the Board to reach. If either of the attorneys choose to pursue this further, the attorney would need that.

Mr. Brown stated that he propose the Board take a straw vote realizing that the Board can't make up their mind officially until they see findings. Whoever prevails can do findings of fact and conclusions of law.

Mr. Patton stated that would be suitable with him as long as the people arenít mislead about what is required.

Mr. Brown stated that now is a good time and will make his closing statements.

Mr. Brown stated to the Board that this is a little different than what the Members are used to. The first thing the Board needs to realize is that Mr. Patton is not the Boardís attorney; he is the attorney for one litigant. This is what is called a contested case under Chapter 536 of the Missouri Revised Statutes. What that means is the Board of Adjustment is the judge. The Members also have a component of making a decision of what is in the best interest. The Members need to decide as judges as whether the use that the Board has heard, and there are several different uses, 90-percent or more of the uses applicants have put this to are not in dispute. Applicants can make a pretty place and Boone County doesnít mind. It sounds like the only real problem arises once there is a use. It is a repeated use, but it is also an incidental use. It is only once a week probably on average. The question is; is the property and the uses that are at issue here, are they uses of a park and forest preserve or are they uses of a commercial business as Mr. Shawver is contending. Applicants are saying that it is one of those situations where in terms of making a decision that is going to encourage or discourage certain types of development and uses in the land. This is a strange situation where youíve got people that involve a lot of sweat labor, a lot of money, time and investment to make a beautiful place for people in Boone County. There is no dispute that this is not just a yard, if you want to go out there and walk around on it, you can. It is a park and you are welcome. One of the incidental activities that applicants do to try and underwrite the cost of the park, because it is not cheap, is to have weddings and receptions and things like that. There is no evidence that there has been any violence or any disruptions or anything like that. There may have been music that was a little loud for someone once or twice. But that is not the basis of Mr. Shawverís reservations. The question here is, is that place a business, a commercial establishment, or is there some minimal activity that might in other circumstances fall in the commercial definition that happens to take place, but it is still a park use.

Mr. Brown stated that in order for the Directorís office to win, the Board has to determine that it is not an acceptable park use to have social events, gatherings of people, and weddings. Who has not been to those types of things in a park? It doesnít mean that applicants are running a wedding business just because they let people use the park. There are two separate issues. One the contracts that applicants put in were not drafted by an attorney and they donít say a whole lot. There is a list of things that you can get, some that applicants provided and some they didnít. The bottom line is, Mr. Brown stated, that he doesnít think that Mr. Shawver necessarily contends but applicants could do exactly what they are doing as long as they didnít charge for the use of the park. There are two ways that applicants do it; they can either charge for their own labor, because no one would expect them to sit up tables and chairs and direct traffic free of charge. So applicants arenít charging for use of the park, that is one type of use. Applicants contend that even if applicants do charge a fee for the use of the park. Just like Boone County does for its parks, just like the City of Columbia does for its parks. Just like every park Mr. Brown ever tried to reserve a pavilion in. It is not unusual to charge something for a park. They may charge $800, they may charge more than that if there is equipment, but how much does it cost to use a Boone County or City park, you pay taxes. No one pays taxes to applicants. It is probably a better buy overall for the public because of the underwriting fee that applicants have.

Mr. Brown stated that is the question here. The Board is not legally required to and should not defer to Mr. Shawverís determination. The determination is whether the uses that are being challenged by Mr. Shawver and his staff and office, whether they are traditional park uses or whether they are not. If they are, the fact that someone is charging some money does not mean it violates the zoning ordinance. In listening to the testimony tonight, Mr. Brown stated he feel that he happened on a very interesting anomaly. It almost sounded like what Mr. Shawver was saying, if you follow his logic to its natural conclusion, is that applicants can put in the money to build this park, maintain it, keep it looking nice, let the public come to it, but applicants are the only people that can't charge someone to have a wedding there. As Mr. Shawver testified if someone wants to come in and have a wedding; Mr. Brown stated if he wanted to go out and have a wedding and charge someone for the same service that applicants are doing, it wouldnít really be a problem because he wouldnít be running a business. That discourages the type of development and land use that you would want for the County. Just to follow up on what opposing council stated, the Board will be asked to enter findings of fact and conclusions of law. Some of the findings of fact that will be asked to be determined are exactly what are the uses. Then conclusions of law based on the Boardís findings of what the uses are. Which uses violate the zoning ordinance and which donít?

Mr. Brown asked the Board to please not punish applicants for trying not to make waves. Because if you do that, you create a culture where no one wants to work with Planning and Zoning. Then the first thing people do is hire an attorney and there is a lawsuit. The reason why the applicants didnít do this the first time, they wanted to get along and didnít want to make waves. Mr. Brown stated when he read the zoning ordinance, when he got in to it late in the game, it seems very obvious that this is what it is. If this were a situation where the only thing that was going on with that land was a wedding facility and applicants had a 20,000-foot indoor facility, that may be a different story. But the Board has heard from independent witnesses; witnesses that the Board can trust, the Board saw pictures and photographs and descriptions of what is going on. Applicants happen to have weddings there once in a while, they happen to make a little money because of their own labor invested and it happens to underwrite some of the costs of the park. But it is not a wedding business it is a park.

Mr. Patton stated that the regulations donít permit a wedding or banquet facility in an A-2 zoning district. They donít permit a wedding or banquet business in an A-2 zoning district. Mr. Patton stated that we are not here tonight to rewrite the regulations and this is not a petition for a variance. This is a petition to determine whether Mr. Shawver made an appropriate decision in enforcing the Boone County zoning regulations. The Homanís have pretty clearly acknowledged that they are running a wedding/banquet type business on the property. A rose is a rose. Applicants are doing advertising in the phone book, they have promotional events, applicants are trying to make money and they are making money. The scale is not what is important. It is the fact that this use is simply not permitted in this district. This is not a situation where the applicants canít do it. The Board is entitled to consider the evidence and the reasonable inferences that can be drawn from it. IF the Homanís had their conditional use permit suspended because they didnít put all the parking in that they were supposed to, it is reasonable to conclude that if applicants do what they were supposed to do under the permit as it was issued, we wouldnít be here tonight. The problem is that we are here on a theory that doesnít have a lot of creditability that applicantís business activities and their operation of this wedding facility is somehow very minor and incidental to this park. Mr. Patton stated that he doesnít see it that way. It is a fledgling business that where theyíve permitted unfair to do what they want to do would develop and applicants would generate as much money as they could get from doing it.

Mr. Patton stated that applicants business records that the Board has demonstrate that applicants try to run a wedding facility business and get people in there who pay fees so they can make money off the property in this manner. It is simply not permitted in the district unless you have a permit. If applicants want to do it, they have to comply with the permit that was issued. It is that simple. This is not a situation where they should be relieved of following the rules that everyone else has to follow. That is in a nutshell, our posture on this appeal.

Member Bowne asked to see the conditional use permit again.

Chairperson Rootes opened the public hearing.

No one spoke in favor of the applicants.

In opposition:

Present: Kenneth Darwent, 14351 N. Proctor Road, Columbia.

Witness was sworn in.

Mr. Darwent stated that he lived on 10 acres that adjoin with the east side of the Homan property. Noise is quite a nuisance. Mr. Darwent stated he likes his peace and quiet. As far as the park, Mr. Darwent stated he questions if it is a park.

Mr. Darwent asked applicants if he could visit the park at any time.

Mrs. Homan stated yes.

Mr. Darwent asked if there was a stipulation saying that someone has rented the park, could Mr. Darwent still visit the park.

Mrs. Homan stated no.

Mr. Darwent stated that he could just come over and mingle.

Mrs. Homan stated yes.

Mr. Darwent stated that it sounds like it is just a business. Mr. Darwent stated that is just his opinion.

Mr. Darwent stated he just wants some peace and quiet. Applicants had the chance of getting the conditional use permit but didnít follow the regulations. Mr. Darwent stated that it is his opinion that applicants will continue to do whatever they want.

Chairperson Rootes asked about the noise problem.

Mr. Darwent stated music and large crown noise.

Chairperson Rootes asked if it was the music or the crowd.


Mr. Darwent stated it was the time the music and the crowd.

Chairperson Rootes asked what time.

Mr. Darwent stated he had different times of complaints after dusk.

Chairperson Rootes stated that in the evening there is loud noise, music and crowd noise that Mr. Darwent can hear from his property.

Mr. Darwent stated that is correct. Mr. Darwent stated he has been out there for 17-years now and it has been peaceful and would like to continue that.

Chairperson Rootes asked how often Mr. Darwent is disturbed.

Mr. Darwent stated some of the incidents occur during the events that happen during the day and they break up pretty early. Then there are some that carry in to the night. Applicants have advertised in the paper for weddings. There were 3 peace disturbances in 2001 and three peace disturbances in 2000. They won't get a ticket or citation because Boone County will come out and tell them to be quiet. There is no record of a warning. The noise is there.

Member Bossaller asked Mr. Darwent in a yearís time, how many times had he been disturbed by noise.

Mr. Darwent stated that the ordinance in Boone County is you can not call in a noise complaint until dusk. Applicants can play music as loud as they want and the only thing that applicant can do is when it becomes dusk, he can call the law enforcement and complain. The noise is there, but when he can legally call and complain is two different things.

Member Bossaller asked Mr. Darwent how many times he had called to complain.

Mr. Darwent stated in 2000, he called 3 times; and in 2001, he called 3 times.

Member Bowne asked Mr. Darwent if he always called to complain or are there other occasions that he just lets go.

Mr. Darwent stated there are times when he lets it go. He is not home every night that applicants are having an event.

Member Bowne stated that sometimes Mr. Darwent is disturbed after dusk, but does not call to complain.

Mr. Darwent stated if it is after dusk, and applicants are loud he would usually call in. He is trying to say enough is enough.

Chairperson Rootes asked council if they would like to ask any questions of Mr. Darwent.

Mr. Brown and Mr. Patton stated no.

Present: Glenn Hoffman, 7181 Wagon Trail Road, Columbia.

Witness was sworn in.

Mr. Hoffman stated he owns property to southeast of the Homanís property. Mr. Hoffman stated (referring to applicantís exhibit 32, which is an aerial map of the property) that on the map, in the lower right hand corner there is a road designated. Mr. Hoffman stated he owned the corner that comes around running from the east of that corner and coming down to the south. Mr. Hoffman stated he has never lived at that location and never brush-hogged the place, but there is a lot of brush that came over on his property. Mr. Hoffman stated he canít understand how it got there and can't say that he saw Mr. Homan do it. When Mr. Homan got the permit, he came to Mr. Hoffmanís house and politely asked what Mr. Hoffman thought about doing this. Mr. Hoffman stated that as long as there weren't a bunch of loud fraternity parties and a lot of ruckus out there, he didnít have a problem with anyone having a park that was going to have weddings at it.

Mr. Hoffman stated that since he hasnít lived there, he can't say that he has any noise complaints. But he can say that he would hesitate trying to build a house out there, because he thinks he would then have complaints. Mr. Hoffman stated this is only his personal opinion, but he doesnít know about the brush and how it got there. Mr. Hoffman stated he wasnít there to do it. There are problems in the neighborhood because of this situation.

Mr. Hoffman stated he is not trying to be impolite to Mr. Homan, his park looks beautiful but when different stuff happens to the neighbors, they arenít going to like it.

Member Bowne asked Mr. Hoffman if it was his intention to build a house on that property.

Mr. Hoffman stated he half has a basement there already and it has been there before Mr. Homan purchased the property.

Member Bowne asked Mr. Hoffman if the activities at the Homan property would inhibit the enjoyment of his property.

Mr. Hoffman stated he thinks it probably might from what he hears about it, but this is only hearsay. Mr. Hoffman stated he lives on Wagon Trail Road, if it gets too noisy there, he may have to move. Mr. Hoffman owns a small mobile home court there, sometimes it gets too noisy and he calls the law enforcement. Mr. Hoffman stated he didnít want to move somewhere else where he would have to that a lot.

Present: Jesse Stone, 14050 Proctor Road, Columbia.

Witness was sworn in.

Mr. Stone stated he lives about a quarter mile from the Homan property and has lived there for 63 years. Mr. Stone stated he agrees with Mr. Darwent, there is no peace and quiet when applicants have events. Mr. Stone stated he has run people off of his property. 90-percent of the time there events at the Homan property, people turn around in his driveway. The next morning, he finds whiskey bottles; wine bottles, beer cans and everything strung from the Homan property to Highway 124. Mr. Stone stated he has nothing against Mrs. Homan, she is the most wonderful neighbor Mr. Stone has ever had. Mr. Stone stated he could not say the same thing about Mr. Homan. What Mr. Homan says and does is two different things. Mr. Stone stated that Mr. Homan asked him if he would care if Mr. Homan cut a hole in his fence and put some brush through it with his tractor. Mr. Stone stated he didnít know it would take a quarter mile of fence to put the tractor through it, but that is what Mr. Homan took out. Mr. Homan took the fence and posts and took them back to his house. Mr. Stone went to Mr. Homan and asked him what happened and why he did it. Mr. Stone stated Mr. Homan told him he thought it would make Mr. Stoneís property look better. Mr. Stone asked for his posts and Mr. Homan told him that he owned the land next to Mr. Stone, so it was his fence and Mr. Stones fence too. Mr. Stone stated that he told Mr. Homan no, he bought the fence and put it up. Mr. Stone stated that he ended up putting the fence back up by himself and placed it four feed off of Mr. Homanís property line so the neighbors could have a driveway. Mr. Homan shut the original driveway off and came on Mr. Stoneís property and made a driveway. Mr. Homan stated that for the neighbors to even get in to their property, they have to come across Mr. Stoneís property.

Mr. Stone stated he hears noise up there up to 11:00 to 12:00 at night and he lives a quarter mile away. Mr. Stone stated he could hear every word of the music. Mr. Stone stated he hears screaming and yelling and people will come back and miss the road and turn around in Mr. Stoneís driveway. Mr. Stone stated he has had people come to him and ask if they could have a picnic on his property. The people thought they were on Mr. Homanís property. It gets old; there is no peace and quiet there anymore. Mr. Stone has lived there all his life and tries to get along with his neighbors, but can't seem to get through to Mr. Homan.

Present: Barb Payne, 14333 N. Proctor Road, Columbia.

Witness was sworn in.

Ms. Payne stated that she owns property south of the Homanís. Ms. Payne stated she recently sold the Homanís 20 acres of her property. Ms. Payne stated that she commends the Homanís, the ten acres of the Homanís is gorgeous. However, when she sold the 20 acres in the contract it states that she has an easement on the Homan property, it was written in that they could change the first 660-feet. Ms. Payne stated she doesnít know that Mr. Homan can change the first 660-feet on to someone elseís property like Mr. Stoneís. Mr. Stone has no desire to lose his property. Ms. Payne stated that she needed to get a legal easement.


Ms. Payne stated that as it shows with the conditional use permit, even when the County suspended the permit, the applicants continued to do whatever they wanted to do. This is what Ms. Payne has found in living next to the Homanís for eight years and it is particularly Mr. Homan. He does whatever he wants; he doesnít care whose property he is on. Mr. Homan has mowed her fields and stored stuff on her property when she owned it. The Homanís have the beautiful area, and then they have the junkyard behind it. Is that part of the area where anyone who comes to the park can go play in, the junk part? There is glass, logs and other junk sitting 20-feet from a well that was dug.

Ms. Payne stated she has some serious issues with the neighborly issue, how you are with your neighbors. Ms. Payne stated she does not care for the noise and doesnít care to be outside. You have your typical farm noises, a brush hog. Whether the Homanís are having a party or not, there are a lot of times that they have their music so loud just with them there, it is disturbing.

Present in favor: Ann Green, 14313 N. Proctor Road, Columbia.

Witness was sworn in.

Ms. Green stated her property is adjoined to the Homanís 10-acre tract. Ms. Green stated she is in favor of the park. The applicants have done a lot of work and have beautified the area and it makes the adjoining property values that much more. Ms. Green stated she has assisted with the weddings that applicants have had on some occasions. Ms. Green stated she has had no problems with noise pollution or any bad activities as far as people being out of place. Everything has been done in a good manner. People come and go. A few cars come in that may be stockpiled a little, but that is only for a short time. Ms. Green stated she has no problems with applicants trying to make ends meet as far as trying to take care of the park.

Present in favor: Anna Nichols, 2851 W. Highway 124, Harrisburg.

Witness was sworn in.

Ms. Nichols stated that she has lived in this area for 32-years and moved there before the Homanís. When the Homanís bought the place, it was run down and a real eyesore. The Homanís have made remarkable changes to the place it is beautiful. Ms. Nichols stated she doesnít notice the traffic being anymore than it has ever been, there has always been a lot of traffic on Proctor Road. It is better for the community. Ms. Nichols stated she appreciated it. Ms. Nichols stated she appreciated the Homanís a lot. The beer cans, bottles, and trash that used to be on Highway 124 are no longer there. It is very clean community. Ms. Nichols stated she appreciates it a lot and would like for the Homanís to be able to go ahead and do the things they want to do with their place. Applicants have spent a lot of money and it is visible.

Member Bowne asked Ms. Nichols if she has noticed an increase in trash on Proctor Road.

Ms. Nichols stated she hasnít or on Highway 124 either. But it is nice that it is clean now because the applicants keep it clean.

Ms. Payne stated she would like to add something.

Chairperson Rootes stated if it was pertinent to the case.

Ms. Payne stated that she believed that catering is a pertinent issue because the applicants do cater. They provide food out there. Ms. Payne believes people have to have a specific license to do that from the Health Department.

Chairperson Rootes closed the public hearing and called for a 10-minute recess.

Chairperson Rootes called the meeting back to order and brought the discussion to the Board.

Chairperson Rootes stated that after the discussion a motion would be made to either to grant or deny the appeal. A straw vote will then be taken. Written materials will be mailed to the Members so they can read them over and the Board will then come back to for another meeting in which all five members will have to be present again to then actually vote. The Members can either wait until the regular April meeting or a special meeting can be called. Chairperson Rootes asked if there were any reason for a special meeting.

Mr. Brown stated that the Board doesnít have to meet again if they want to circulate the findings of fact as long as there are signatures of yes or no on the decision.

Mr. Patton stated he agreed to that. Whoever prevails will provide the Members with findings and conclusions of decision and the Members would have to sign off on that for the record. This could be circulated through the staff.

Member Bowne stated that she was the technician from Boone County Soil and Water that had gone out to the farm and looked at it and they looked at some conservation measures. Member Bowne stated that theyíve had a couple of conversations on the phone in which Mr. Homan asked questions about how the Board functions, the issues the Board covers. Member Bowne stated that she told Mr. Homan that the best thing for him to do would be to read the zoning regulations. There were questions on the availability of minutes and agendas from past meetings and such. At the time this was discussed, there wasnít any issue before the Board and no indication, if any, may come before the Board, just some general information of how the Board functions.

Member Bowne asked the applicants if they are appealing the issuance of the conditional use permit.

Mr. Brown stated that the conditional use permit is completely irrelevant.

Member Bowne stated that the applicants are not appealing the revocation of the conditional use permit.

Mr. Brown stated no, it is applicantís contention that they were never in violations.

Member Bowne asked applicants if they are appealing the letter that was sent out that was in the Members packets which was sent by Thad Yonke that stated that applicants were in violation of the permitted use in that area.

Mr. Brown stated that he guessed he would say yes. What specific issued that applicants are appealing are kind of all merged in to what the applicants are asking the Board to rule on?

Mr. Patton stated that the application specifically referenced that letter.

Mr. Brown stated that is the triggering event, but wouldnít say that is the total issue. Mr. Brown stated that if applicants do what they have always done; charging people for the services and use of the park is it a violation, is it not a park use. The alternative is the applicants just charge for their own labor and donít charge for the use of the park. That is a separate issue, is that a violation.

Member Bowne stated that the time to appeal the conditional use permit expired a long time ago.

Mr. Brown stated that the conditional use permit never was part of it.

Member Bowne stated that the Boone County Commission determined that this was necessary to issue a conditional use permit. Member Bowne asked applicants if this were true.

Mr. Brown stated that Member Bowne is asking for a legal opinion. Mr. Brown stated that the Boone County Commission granted a conditional use permit, it didnít make any findings that it was necessary. There has never been a finding from the Commission or from this Board of Adjustment that Mr. Brown knows of that any use applicants made of that property was or was not appropriate, this is it.

Mr. Patton stated he does not agree with that. The permit itself has specific findings required under the ordinance.

Member Bowne asked Mr. Shawver on page 44 of the zoning ordinances, part G states "The conditional use permit shall in all other respects conform to the applicable regulations of the zoning district in which it is located. The County Commission shall find that there is a public necessity for the conditional use permit." Member Bowne asked Mr. Shawver if that is the general, whenever there is a conditional use permit request, the County Commission had to find that there is a public necessity for the conditional use permit.

Mr. Shawver stated that each one of the conditions that is listed on page 43 and 44 are conditions that the County Commission has to be satisfied that all of those conditions must be met before a conditional use permit can be issued.

Member Bowne stated also on page 44, number 4; it states what the director must do if he feels there was a violation of the permit. Member Bowne asked Mr. Shawver if that is the particular action that precipitated the letter from Thad Yonke that went out which was referenced in the packet the Members received.

Mr. Shawver stated no. The original conditional use permit had a review, at that time the permit was suspended.

Member Bowne stated that we are done with that.

Mr. Shawver stated we are done with that. The Commission advised that if the applicants complied with the conditions, if they finished with the paving of the parking area and met the time constraints, the permit would be valid. Applicants did not do that, they continued to have events. What triggered the letter was the advertising that was taking place for the wedding show, where they were having a number of vendors present to showcase their wares. It was to be conducted at the Alpine Park. Staff advised the applicants that this would be a violation, when the event occurred, Staff notified the applicants that they had violated it.

Member Bowne asked the applicants if the advertising had been done from the very beginning.

Mrs. Homan asked advertising for the wedding show.

Member Bowne stated advertising for use of the facility, advertising for any type of events to try and draw events in.

Mr. Brown stated that Mrs. Homan had her own graduation party there and they had a wedding. Other people started asking to use it. They did a few of those with no charges at all. That elevated and got listed in the Columbia Visitors Bureau.

Mr. Brown asked Mrs. Homan if they bought any ads for other than the wedding show.

Mrs. Homan stated yes.

Member Bowne asked when that started.

Mrs. Homan stated from the very beginning.

Mr. Brown stated that his recollection is that the conditional use permit has been revoked for several months, maybe a year or more, before all of this restarted.

Mr. Patton stated that the permit had not actually been revoked under the regulations. It has only been suspended. Mr. Patton stated that he doesnít know if the regulations outline the suspension proceedings except that they put a condition to review its validity after a year of issuance to see if they complied with the conditions. That was the ruling that the Commission made so the Director has not filed a petition under the regulations and revoked the permit yet.

Member Trabue stated that it was his understanding that the Pinnacles Youth Park was initiated in the early 1960ís as a youth park, there is now an advisory board or an association of that sort. Member Trabue asked Mr. Shawver the zoning of the Pinnacles Youth Park.

Mr. Shawver stated the Pinnacles Youth Park is zoned A-2.

Member Trabue asked if it was a permitted use within the A-2 zoning.

Mr. Shawver stated that a park is a permitted use.

Mr. Brown asked Mr. Shawver if he was now saying that the activities taking place at the Pinnacles Youth Park is a permitted use.

Mr. Shawver stated that the Pinnacles Youth Park was in existence before County zoning regulations. Mr. Shawver stated he did not know what they are taxed at but believes they are probably tax exempt. Reservations have to be made through the University Extension services at one time the County actually was the owner of the park. Mr. Shawver stated that those issues are so clouded he wouldnít want to venture to guess.

Mr. Homan stated that the issue that the County ever owned the park is false. It has been owned by the foundation since conception. The County helped expand the park in 1996 by buying 17 adjacent acres then later sold that land to the Pinnacle Park for expansion of the park. They put in restrooms and a storage facility to increase the use of the park by having on-site restrooms. Now they charge for weddings and receptions. Any large group has a $100 fee associated with the use of the park unless you are a youth oriented group in which case they waive that fee.

Mr. Brown stated that the point in mentioning these parks is just to show and prove what parks are used for.

Member Trabue stated that the importance with the Pinnacles Park is that it is in some regards a grandfathered use under the ordinances. Because it was in existence before the Planning and Zoning ordinances were adopted.

Mr. Brown stated that is true, but it is still an illustration of what parks are used for.

Member Trabue asked if someone could tell him where Chapel View Stables is located.

Mr. Homan stated Route E about a mile past Billyís General Store.

Member Trabue asked Mr. Shawver what the zoning was in that area.

Mr. Shawver stated Chapel View Stables is zoned A-2. The Department was not aware that they were conducting these types of activities. After the appellants subpoenaed the owners of Chapel View Stables, they came in and wanted to know what they needed to do to come in to compliance. The owners have submitted an application for a conditional use permit for an outdoor recreational facility and for an animal training and boarding facility which is on the April Planning and Zoning Commission agenda.

Member Trabue stated that Chapel View Stables does not have a conditional use permit.

Mr. Shawver stated no.

Chairperson Rootes stated going back to the Pinnacles Youth Park, even thought their activities may be grandfathered. Chairperson Rootes asked applicants if they do anything other than just reserve a space. Chairperson Rootes stated her son and daughter-in-law were married there and all she knows is they just paid to reserve a shelter.

Mr. Brown stated he didnít know.

Mr. Homan stated that he believes they mostly manicure the lawn, there may be a specific area they use. Theyíll go in and police it and mow; then generally a third party vendor will come in and set up chairs. Mr. Homan stated that they have had clients who get married at the Pinnacles Park then come to Alpine Park for the reception.

Chairperson Rootes stated that the main thing they do at the Pinnacles is just to reserve the space so it is semi private.

Mr. Homan stated it is an organizational type of thing where you are not going to have multiple groups show up at one time to use the same facility and create a headache or problem.

Member Trabue asked where Shernís party cove is located.

Mr. Homan stated that is located off Finger Lakes. It is the first drive off of Finger Lakes; it is a relatively new place. It is a place where fraternities can hold parties because there isnít a lot there that they can tear up. It is basically a pasture with a shelter house and a plumbing for possibly a future bathroom. Basically the fraternities bus out and do their thing and bus back.

Member Trabue asked if this was a private or public facility.

Mr. Homan stated it is private.

Member Trabue asked Mr. Shawver what the zoning was in that area.

Mr. Shawver stated the area around Finger Lakes State Park is zoned A-2.

Member Trabue asked Mr. Shawver if Shernís had a conditional use permit.

Mr. Shawver stated he is not familiar with this at all.

Member Bowne stated while we are talking about party places, the one on Mexico Gravel that is in the news a lot.

Mr. Shawver asked the old Corns Lake.


Member Bowne stated yes and asked Mr. Shawver how that was zoned.

Mr. Shawver stated it is zoned residential and has a non-conforming use for commercial activities. This was built by Cornbread Martin in the 1960ís.

Chairperson Rootes asked if this was mainly an indoor facility.

Mr. Shawver stated yes, it is an indoor facility.

Member Bowne stated they also have an outdoor facility. It is actually a facility that can be rented for parties but they have a permit that allows a permit to do that.

Mr. Shawver stated it is a non-conforming use. It has been through various phases, it has been everything from a party facility, and it has been an active bar several times. It has been a private facility just for concerts. It has evolved several different ways over the years.

Member Bowne stated that in the County there are these types of facilities available in different zoning areas.

Mr. Shawver stated yes.

Mr. Patton stated this has grandfather rights, which is why they can do what they are doing. It is really not zoned residential.

Mr. Shawver stated that is correct.

Member Trabue asked what the zoning was for Cooperís Landing.

Mr. Shawver stated that Coopers Landing is zoned REC.

Member Trabue stated that no conditional use permits are required.

Mr. Shawver stated that is correct.

Member Bowne asked applicants when they provide amenities such as food and ice, do applicants also provide beverages.

Mrs. Homan stated that clients bring in soda canisters from Pepsi.

Member Bowne stated that she saw that applicants had a pig roast and it came from Tunes.

Mrs. Homan stated that Tunes did the processing. Everything else is already prepared somewhere else. Applicants may go shopping for the clients. They will go to Samís and get potato salad, produce from Columbia Produce, everything is already done.

Member Bowne asked if applicants paid for those.

Mrs. Homan stated it is part of the package.

Member Bowne asked if the applicants write the check to Tunes and the other places or does the client

Mrs. Homan stated that at times applicants do, other times the client will. The client actually wrote the check to Tunes. Applicants wrote the check to Pepsi, so it is usually a combination.

Member Bowne asked if clients reimbursed the applicants for that.

Mrs. Homan stated yes.

Member Bowne asked if there was a markup.

Mr. Homan stated no. With the ice, applicants will go to Dibben's and buy ice because it is close or to Heuerís because it is close.

Member Bowne stated if applicants paid a dollar a bag, the clients are only charged a dollar a bag.

Mr. Homan stated yes.

Member Bowne stated that the question of beer came up. Do applicants sell beer?

Mr. Homan stated no.

Member Bowne asked applicants if they had business licenses or anything that allows them to sell food and beverages.

Mrs. Homan stated that the business license under Wood Unlimited does allow for the sell of wares. It doesnít define what wares are. But it does allow for sales. As long as you are operating that as the primary business, it does allow you to sell.

Member Bowne asked which business the business license is under.

Mrs. Homan stated Wood Unlimited.

Member Bowne asked Mrs. Homan if she was listed as a co-owner under that license.

Mrs. Homan stated she doesnít believe so.

Mr. Brown stated they are under sole-proprietorship. Legally it is just those two doing business, there is no corporation. There are separate names but it is the same entity.

Member Bowne stated so both of their names are on that business license.

Mrs. Homan stated no, just Mr. Homanís.

Member Bossaller stated that in the request for the conditional use permit application under classification and proposed use for conditional use permit and family reunions, picnics, and weddings were mentioned.

Mrs. Homan stated yes.

Member Bossaller stated that applicants were justifying why they should get a conditional use permit.

Mrs. Homan stated she was under the direction of the County.

Member Bossaller stated that applicants mentioned that they were going to have weddings and it says they usually occur on Saturday and Sunday afternoons and end early. Member Bossaller stated the way he interprets this process was that this doesnít say that so lets do this with certain stipulations. Member Bossaller stated that he had to surmise that the information on the application was processed to issue the conditional use permit.

Mrs. Homan stated yes.

Member Bossaller stated that the staff tried to provide a way for applicants to do some of these things.

Mrs. Homan stated yes.

Member Bossaller stated that conditions were on the permit, which applicants didnít follow. Member Bossaller asked applicants why they didnít do the 60 parking spaces that they had agreed to do. Member Bossaller stated that the Board can not let just everybody do anything they want to in the County. On the other hand, people should be able to do things that are good for the County. The Board has heard people say that the land is better, Member Bossaller stated he likes that. But what he doesnít like is that applicants didnít do what they said they would.

Mr. Brown stated whether those documents mean anything, you have to start with the concept that the applicants understood exactly what they were doing. As Member Bossaller identified, even attorneys donít understand the process. Mr. Brown stated he didnít think the Board could read any conclusions in to what the applicants did during the conditional use permit process, because what applicants were trying to do is comply to what they thought was expected and what they thought would work. In direct answer to the question as to why they didnít put in the 60 spaces. Applicants have over a hundred spaces. They just donít have 60 paved. They have 22 paved and the place where the paving would have to happen is right where you have to take bulldozers through in order to continue development. The applicants could pave it then run bulldozers over it, then have to pave again. That is the practical consideration. The other consideration, Mr. Brown stated, is he is not sure that everything was as clear to them in this conditional use process and suspension process as it is now being presented. Applicants were under the impression that the permit could be revoked at anytime and they were asked to put in 60 parking spaces, then may lose the permit tomorrow. That is a big investment for that type of contingency. The other thing is, it doesnít look like applicants need a conditional use permit. The question here is what is the use of the property. There is not a big building there where they have big weddings, there is a park and it is the primary use 23 hours a day. You have an incidental use that is common in parks.

Member Bossaller stated that applicants say they didnít provide the parking because everything was up in the air and they werenít sure they would be able to continue.

Mr. Brown stated they didnít do it because they thought it would be torn up by bulldozers traffic and the applicants wanted some kind of assurance that if they did, it would actually be accepted.

Member Bowne asked about the part of not having anything after dusk. In looking through the times that were on the reservation sheets, obviously they were not going to end at dusk because they had planned hours of 5 to 6 hours and they were starting at 4:00 p.m. in October. Other things were scheduled to start at sunset, so obviously it wasnít going to be done at dusk. From everything that was planned there and in to 2002, things are planned after dusk, applicants have no intention of stopping these things at dusk.

Mr. Brown stated that applicants will comply with the law once it is clearly declared, that is what applicants are trying to get from the Board. Right now, applicants arenít thinking of operating under a conditional use permit. Applicantís assumption is that it is a permissible use.

Member Bowne stated that applicants did not end the events at dusk under the conditional use permit and that was the law at the time. It was issued, but they did not stop at dusk during the conditional use permit time.

Mr. Brown stated that there may have been a few occasions where that happened. All of that at that time was not under applicantís control, because there are other people involved and they werenít going to get them out of the park. Applicants arenít going to claim that there wasnít some type of technical violation on one or two occasions during the conditional use permit. The other thing is, it is not clear exactly what stopping means. Does that mean turn the music off and tell people to go home or does it mean to have everyone out of the park.

Member Bossaller stated if the music is too loud and is bothering people, then it is too loud. If applicants donít have a conditional use permit, then you are in trouble. If applicants donít go by the requirements of the conditional use permit, it should be revoked; it is simple.

Mr. Brown stated he didnít disagree with that.

Member Bossaller stated he also believes that there is a lot of positive stuff that applicants did of making the land great. But applicants can't just do whatever they want to do. Member Bossaller stated that this is the issue he is having with this.

Mr. Brown stated he understood that and what applicants are hoping that the happy medium in this does give some level of control. The question is whether it is a park and what are the park uses. If you have someone who puts in a big facility and does a lot of business type weddings, then at some point, it stops being a park use and it becomes a business facility. In this situation the majority of the time has nothing to do with weddings. We would all like to live in the middle of 1000-acres so we didnít have to listen to the neighbors, but it is A-2, applicants could put in a swine feed lot if they wanted. They could run a diesel tractor until 2:00 a.m. if they wanted to, that is agriculture. Those are not issues that are solved here. The question is; is this something that the County wants to encourage with developing parks and forest preserves. As long as the uses do not engulf the purpose of the land and the actual use of the land, why is that something the County wants to discourage?

Chairperson Rootes stated that all along, everyone has been speaking in favor of the improvement to the land and the restoration of native plants, the development of better timber, and protection of the water shed. All of those things are great. Applicants made the point that the use would switch over to being a commercial use. It is a matter of where do you draw that line. If you have five acres that you take care of, it could be called a park. You could invite people out and have a picnic, is it okay to have five people out or a hundred. Is it okay to have them every week, is it okay to charge them something? At some point, it crosses over and becomes a commercial enterprise. Chairperson Rootes stated it is her opinion that when you have business cards printed, and an ad in the yellow pages and when you do promotional activities to encourage more people to come, you have crossed over in to a commercial enterprise. It is really no longer incidental, it has now become something that is a major part of the business plan to support the activity and then it becomes a commercial activity.

Member Bossaller stated that he thinks that was understood. Staff tried to find a way based on the applicantís request, to compromise with that some way. Applicants went over the line. How can the Board make it all work for everyone? Member Bossaller stated that is something he would like to see. If staff would do that, make it a win win situation but the applicants will need to compromise.

Chairperson Rootes stated it was not staff that made the compromise, it was the County Commission.

Mr. Brown stated it was difficult to compromise in a situation like this because there are so many decision-makers. It is not that applicants are against any type of compromise.

Member Bossaller stated that he can't see not having the proper zoning, where is the balance.

Mr. Brown stated that the phrase in the A-1 and A-2 zoning says parks and forest preserves, what is that? If it is people investing money with absolutely no hope of recouping, then you arenít going to have any.

Member Trabue stated that he agreed that the County wants to encourage the development of parks and forest preserves. Unfortunately, this body is not in a position to write regulations and ordinances, but to interpret them. Member Trabue stated that while he agrees wholeheartedly that the County needs to encourage that type of thing and find a way to make it attractive for people to do that. But that is another part of the process, it is not here tonight. What the applicants are asking for is very fair. Does this fall within the park and forest preserve category?

Member Trabue stated he wanted to get to the question of incidental use. Applicants have invested a great deal of money on the property and built a very nice pavilion. Member Trabue asked what the driving force was in building the pavilion.

Mr. Homan stated that he had a farm and harvested the logs and has always been interested in timber framing, he dabbled in it and wanted to build something that ties you back to the heritage days of early construction. Mr. Homan stated he wanted to build something that he could showcase and to show people that there are construction techniques that are above and beyond simple stick framing. Todayís market force of going out and building a big homes and hiding everything with sheet rock and so fourth, a lot of people have lost this art. When you see a timber frame home today, a lot of it is still hidden away. Mr. Homan stated that he exposed the frame to where people could come it and see it. A lot of the older people reminisce about they remember their grandfathers barns and go back. A lot of people think the Amish built it.

Member Trabue stated it is very beautiful and he appreciates the structure. Member Trabue stated that it is 2400 square feet and larger than his home. Member Trabue asked what the driving force was for building the amphitheater.

Mr. Homan stated that the amphitheater was an old cattle pond, nothing but a mosquito haven. The dam was knocked down and it was still a wet area. Applicants wanted to build something up off the ground so people could sit down there and enjoy that area.

Member Trabue asked how large of an area is the deck platform.

Mr. Homan stated 10 by 20. The second tier is approximately 10 by 10.

Member Bowne asked what building permits were issued for these structures.

Mr. Homan stated there was only a permit for the pavilion.

Member Bowne asked how it was issued.

Mr. Homan stated through the Planning and Building Inspection Department.

Mr. Shawver stated yes, the permit was issued as an opened frame structure. As an accessory building under the zoning regulations at that time a permit had not been issued. The Department gets requests for building permits for all kinds of structures. They are issued as accessory structures and pole barns or whatever theyíre intended for. Until they are used otherwise they are legal.

Member Bowne stated this was permitted as an agricultural structure.

Mr. Shawver stated yes.

Member Bowne stated not as a non-ag use.

Mr. Shawver stated it could be used for storage of equipment and hay.

Member Trabue stated the uses allowed in the various districts A-1 and A-2, the permitted uses listed in the regulations are very specific and indicates that buildings for premises shall be used for the following purposes. Then we allow conditional uses within each various district classification to allow the County, through the Planning and Zoning Commission to afford some other uses that are consistent with that district. Member Trabue asked how many conditional use permits are issued a year.

Planner, Thad Yonke stated on the average the Commission probably hears 12 to 15 conditional use permits a year. But the conditional use permits are also very specific. Only those things that are listed as conditional use permits are allowed to go through the conditional use permit process. Some of those are more open ended than others. Outdoor recreational facilities cover a wide variety of things.

Member Trabue stated that the determination was made by someone that this facility would have to fall under a conditional use permit of the A-1 district as an outdoor recreational facility.

Mr. Yonke stated that there are also additional accessory uses that are allowed in districts that are permitted under conditional use permits. This information is found in Section 7 of the zoning ordinance. You have permitted uses, conditional uses, accessory uses, and then by default everything else is a prohibited use.

Member Trabue stated that in Section 7, the accessory uses are very specific.

Mr. Yonke stated that is correct.

Mr. Shawver presented the building permit for the structure.

Mr. Shawver stated that it was applied for as a pole barn.

Member Trabue stated he didnít believe that it didnít have anything to do with fees, it is all about the use. It has nothing to do with fees. Member Trabue stated his interpretation of the regulations whether it be the zoning ordinances or the subdivision regulations is we never deal with money, that can't be a condition. The County doesnít really care if applicants make money or not. As a regulatory authority, they hope applicants do. That issue can't enter in to it. It isnít about fees, it is about physical use and can this activity occur under a park and forest preserve. Member Trabue stated his opinion is that the activity itself having a wedding in a park is a very acceptable use. But this is not just an incidental activity, this is being built as a business, it is being advertised in the yellow pages as a business, wedding supplies and service. There are advertisements and fliers for these other events, the wedding show, etcetera. It is very clearly a business. Its use is not incidental to this piece of property. This piece of property has evolved in to this use and will continue to evolve to be more a part of it. It appears to be a very lucrative part of it. It is a beautiful piece of property and can see the attractiveness for people to come out there. We need to find a way to make it legal under the ordinances and has to agree with Member Bossaller that the conditional use permit appeared to be the most appropriate way under the current regulations. The conditional use permit necessarily satisfied all the people in the neighborhood, but not everybody is happy all the time.

Member Trabue stated that he believed it is a great place and it would be a great place to have a wedding or reunion or meeting. But if it doesnít fit the regulations, then the Board doesnít have any choice.

Member Bossaller stated that the conditional use permit did provide the applicants a way and the staff tried to find the applicants a way to do what they wanted to do. Applicants took it out of control with all the advertising with what the intent was.

Mr. Brown stated that the advertising wasnít in violation of the conditional use permit. That is precisely what the conditional use permit said was okay.

Member Bowne stated that we are not talking about the conditional use permit.

Mr. Homan stated that all the parks advertise. The Columbia Parks and Recreation advertise their parks throughout the State. The State parks advertise their parks throughout the Country. Federal Parks advertise everywhere. All the parks and recreation advertise their parks. Some advertise they are recreational and some advertise their natural areas, some advertise the fees and hours. As far as advertising, it is an integral part of getting people to come to your park. Mr. Homan stated that Alpine is listed under parks and it is listed under weddings. A wedding is synonymous with a park. As far as trying to get people to come out and tour the park, you get in to the Columbia Better Business Bureau and you get in to the web sites that advertise it as a natural area. It is an evolving way to develop the advertising is how you get out there and have people out and not be an unknown place. Obviously the marketing is working; it is drawing attention. But it is evolving the market to get the people who are coming out like senior citizens and people who want a change of pace versus going to the Katy Trail or other natural areas. People are busting at the seams to find other areas. Pinnacles advertises very little, they are more or less word of mouth. They have had regulations to knock down some of the activity that was making it a party place. Applicants have instilled controls where they tell the clients that they canít enjoy the park at night but need to come out prior and enjoy it for several hours while they have daylight. Applicants donít want to put up lights and making something like Silver Dollar City. A park is a daytime use; sometimes people want a sunset wedding. There are times where people enjoy that part of the evening, you have different natural sounds, birds, the atmosphere and just the sunset people enjoy. To tell the clients that there are regulations where they have to be out of the park by dusk, virtually says no to the whole idea. Applicants tried to adhere to that, they have tried to work with clients to use the park earlier in the day, then get out earlier. Clean up takes two hours, that is the client cleaning up. With applicants cleaning up, it can take until midnight.

Member Trabue stated he appreciated the comment about the advertising and thinks it is very appropriate. But those parks and facilities are in the zoned areas for parks and for those types of uses, or grandfathered.

Mr. Brown stated that Maple Wood Barn Theater is zoned A-1.

Member Trabue stated that is in the City.

Member Bowne stated there is no need to look at the City things because that is a totally different issue. You are comparing apples and oranges. Mr. Homan hit on it when he said it had evolved. It started out as an agriculture tract and it was ag use. Then someone built a home there and it became a homestead, its use was to provide shelter. When the open air shelter, it was built as a pole barn. Member Bowne stated she has been there and it is not a pole barn. It is a facility that is used for weddings and other gatherings. A pole barn is not something that has decorative lights in it and the white tablecloths; it has evolved. The Board is not saying that applicants canít continue that. It went from an agriculture tract to a home to a park, but it has evolved past the park and now applicants have a commercial business at the park. Is it primarily a park or is it primarily a commercial business? Member Bowne stated she didnít believe that makes a difference because we are looking at a commercial business. The Board is not saying that there is not a way that you could have this commercial business and the park and the home. Applicants have to go through the regulations and one of the regulations is that the County offered the applicants a conditional use permit that permitted applicants to have exactly the business they want to have with the conditions of the parking area, the noise, events ending at dusk and other minor conditions.

Mr. Brown stated that the conditional use permit stated that it should completely shut off at dusk.

Member Bowne stated that was a condition, but applicants can still have their business. Applicants have said they wanted it during the daytime so does not see how that is a problem. That is something that applicants have to decide; do they want to meet that condition or not? At no time has anyone said that applicants can't have this business, everyone has encouraged applicants to do it. But at some point they said that there has to be some constraints. Member Bowne stated that she doesnít see that staff has mislead the applicants or been incorrect in their evaluation. It has evolved, but has went past the park stage in to something else. It has evolved in to a business in to something that will work for the applicants in the neighborhood and it will just have some conditions on it. Just like when we drive down the road, we have a condition on it; there is a speed limit. That is up to applicants as to whether they want to pursue that business and meet the conditions or not. If applicants get the conditional use permit again, or if it is made active again, applicants can always meet those conditions and go on with the business. If applicants continue to violate the conditions then the neighbors are going to call in and at some point, they are going to quit just giving a friendly warning and it is going to proceed on to a legal thing. No one wants it to go there. Everyone has been real happy with the development that the applicants have made, but it has evolved past the point.

Member Bowne stated she did not want to talk about things in Columbia and doesnít want to talk about other areas that might be in violation. There is nothing in these other parks that was given a stamp of approval by the Department, they just havenít been reported. The way this department works is, it works upon complaints and that is why they went out there and that is why we are here at this point. No one has ever said that applicants can't do this, they just said applicants have to go through the standards. Member Bowne stated that she didnít think the staff misinterpreted those standards.

 

Member Bowne made and Member Trabue seconded a motion to deny an appeal by Barry and Sherri Homan of a decision by a Boone County official stating that the use of property located at 14341 N Proctor Rd., Columbia, is in violation of the permitted uses for the A-2 (Agriculture) zoning district. This decision will be finalized upon a written decision by the Board.

Chairperson Rootes Yes Member Bossaller Yes Member Bowne Yes Member Clementz Yes

Member Trabue Yes

Motion to deny request with condition carries 5 Yes 0 No

 

 

NEW BUSINESS

None.

 

OLD BUSINESS

None.

 

 

ADJOURN

Meeting adjourned at 10:30 p.m.

Respectfully Submitted,

 

 

Paula L Evans

Secretary

Minutes approved this 25h day of April 2002.