Easement waiver denied for organic farm

The Planning Commission denied a waiver to not place utility and drainage easements on sectional parcels in the city’s planning area along Commonwealth Road.

Associate planner Sarah Bingham said that this waiver was connected with a 5-acre lot split that was also on the agenda, and the property owners intended to use the land for organic farming without fear of their investments being torn up by utility companies.

City staff suggested denial, she said, based on the city’s criteria for granting a waiver. According to the staff report, staff did not believe the land has special conditions, and the property owners will still be able to use the easement space — albeit with some risk. Moreover, according to the staff report, granting this waiver could make development near this land more difficult in the future.

Richard Utecht Jr., whose father owns the property in question, came to explain his family’s position.

“When you actually look at the topography of the land and our desired uses, the easements create a burden for us,” he said. “It removes a significant portion of the land that would be usable for us.”

He doesn’t believe his family’s use of the land would cause a problem, he said, and the only neighbor

who could be affected is on well water and a septic system, and their electricity comes from a different direction. The primary concern, he said, is the strip down the middle when the property is split.

The property owner, Richard Utecht Sr., was unable to attend in person, but addressed the council via video call.

His family needs to split the lot, he said, to be able to build two homes, but also needs the easements freed up to make space for orchards and the requisite infrastructure. That infrastructure, he said, is extensive and expensive, and he’s concerned that it could go to waste if it sits on a utility easement.

“We can’t justify putting in that kind of investment … that could potentially be ripped out later,” he said. “We have to very carefully consider every aspect of how we use this property.”

He does not believe Bella

Vista has a compelling reason, he said, to have those easements now or in the foreseeable future. Moreover, he said, he was frustrated that the commission did not have a work session — the work session was cancelled because a quorum could not be established — to discuss his waiver request more thoroughly before voting on it at a regular meeting.

Vice chairman Doug Farner confirmed that while the easements would not prevent farming, they would present a level of risk.

“It does encumber some risk, it’s much like building a fence on a property line,” he said.

Commissioner Don Robinson said he had concerns with this waiver. He wasn’t in favor, he said, but the commission also did not have time to look over it as thoroughly as he’d like. He suggested the commission might table it so that all of the relevant information could be explored.

Moreover, he said, Commonwealth Road has recently seen improvements and may attract development. Lacking easements,

he said, could create potentially pricey problems for prospective developers.

“Somebody is going to want to develop. … Something may come through there,” Robinson said.

Commissioner Gail Klesen said she shared these concerns.

Chris Suneson, director of the Community Development Services Department, said that this would certainly make development difficult, and potentially very costly, for someone who could otherwise make use of the easements if they are waived.

“It would be a major effort as well as, possibly, a major expense,” he said.

He added that, for a waiver of this nature, four affirmative votes from the Planning Commission are required. With chairman Daniel Ellis and commissioners Chad Nall and Shawki Al-Madhoun absent, he said, the four commissioners present would need to approve the waiver unanimously for it to pass.

All four commissioners voted unanimously against the waiver and voted to

table the lot split until the waiver is resolved.

Suneson said that appeals of certain Planning Commission actions, including denial of a waiver, may be made to the City Council.

“We will appeal to the city council,” the junior Utecht said.

After this discussion, the commission approved a property line adjustment on Forest Hills Boulevard as well as lot splits alongside Bella Vista Way, Cunningham Drive and Dartmoor Road.