July 20, 2010
Minutes of the Planning & Zoning Commission’s and the Board of Adjustment’s joint hearing for Michael & Nancy Kelsey’s request for a conditional use permit to have a recreational clays shooting range on their property in the NE¼ of Section 13-T96N-R18W, Floyd County, Iowa.
Planning & Zoning Commission Members present were Thomas Schwab, Michael Goddard, Duane Koch & Susan Nelson. Roll call of Board members was taken and four (4) of the (5) members were present with Board Member Dean Tjaden being absent. After roll call, Chair Schwab excused himself from the Board due to a conflict of interest of being the applicants’ realtor. Also present was Jeff Sherman, Zoning Administrator; Misty Day, Assistant Zoning Administrator; and Norman Klemesrud, Floyd County Attorney. Applicants Michael & Nancy Kelsey were also present, along with their realtor Thomas Schwab and approximately 30 neighbors and citizens. Attorney Patrick Vickers was present on behalf of Travis & Jennifer Ehlebracht and Ray & Nancy Ehlebracht, who were also present with the exception of Travis Ehlebracht who could not be present due to his work schedule.
Co-Chair Susan Nelson stated to the audience that they had sought legal advice from County Attorney Klemesrud who advised the Board that the Board of Adjustment would need to make their decision with any conditions they wish to impose prior to the Planning & Zoning Commission making its decision. Co-Chair Nelson also stated that the Board of Adjustment would have a joint hearing, the Planning & Zoning Commission would recess while the Board of Adjustment made their decision, and the Planning & Zoning Commission would then reconvene to make their decision. Co-Chair Nelson invited the Board of Adjustment to the table for the hearing.
Board of Adjustment Members present were Ann Sullivan, John Gohr, Ron Muff, Dennis Staudt, and Bill Fluhrer. Roll call of Board members was taken and four (4) of the (5) members were present with Board Member Ann Sullivan arriving after roll call.
Applicant Nancy Kelsey began her presentation with the business plan for Flood Creek Sporting Clays. The business plan included history of Flood Creek Sporting Clays including their prior operation that ran for 19 years from 1988 until 2007. Applicant Nancy Kelsey stated that Flood Creek Sporting Clays included both male and female shooters that varied in age and experience level and that the operation served special interest groups, high school trap teams, families and members of the Mitchell, Floyd & Cerro Gordo County Sheriff’s offices. Tournaments were also held 4 times a year bringing 45 to 150 shooters with food stand venders operated by the Rudd Little League, Rudd Betterment and Juvenile Diabetes Association with proceeds from these food stands going to these groups. They also hosted cancer fund raisers and traveled to other benefits for cancer and the Boy Scouts of America with their equipment. Flood Creek Sporting Clays hours of operation were from the 1st week in April to the 1st week in October and they were open Wednesdays from 5 p.m. to dark, Sundays from 11:30 a.m. to 4:30 p.m., and Saturdays by appointment. Michael also taught hunter safety courses and he and Nancy employed 136 young people from the community over their 19 years of operation, with 4 employees who worked during the week and 14 who worked during weekends and tournaments. The new operation will operate much like it had in the past.
Applicant Michael Kelsey continued the presentation by stating that they planned to post signs around the entire perimeter, plant trees to buffer the noise, as well as plant prairie grass around the creek. The entrance driveway has been approved by the County Engineer and will be gated and locked when the shooting range is not operating. Flood Creek Sporting Clays will allow shotguns only. Applicant Michael Kelsey also stated that they pick up trash every night and mow regularly. There will be a portable restroom available as there will be no water or sewer hookups. Flood Creek Sporting Clays will also have a $1 million dollar insurance coverage. A map that shows the location of the stands and direction of the shooting was given to the Board Members and is attached hereto as Exhibit 1. Prior to the hearing, Applicant Kelsey provided a packet of information for the Board that included approximately 40 pages of emails in support of the business which came from people who resided outside of the County and even the State, a Petition in support of the business, a Plat of Survey, and the business plan which are available in the office of the Planning & Zoning Department. A supplemental page to the Petition in support was also provided to the Board Members which included more local citizens from Nora Springs, Mason City, and Rudd. Al LaCoste, Sara LaCoste, Sharon LaCoste, Wayne LaCoste, Kris Brass, and another Brass whose first name is hard to read were the citizens from Rudd who signed the Petition.
Board of Adjustment Member John Gohr inquired as to where the City Limits of Rudd was located. Applicant Kelsey identified it on a map provided by the Planning & Zoning Department. A copy of this map is attached as Exhibit 2 and also shows the location of the prior shooting range, as well as the neighbors who spoke during the hearing. Planning & Zoning Commission Co-Chair Susan Nelson inquired as to how far from Rudd Park Road would the closest stations identified in Exhibit 1 be. It was determined that they were 364 yards from Rudd Park Road. Planning & Zoning Commission Co-Chair Susan Nelson inquired as to how far away the nearest buildings were from the proposed shooting range. A map attached as Exhibit 3 was consulted which shows that the shooting range is 370 yards from a building located on Dennis Straube’s property, 402 yards from Travis & Jennifer Ehlebrachts’ house, and 660 yards from a building located on Steven DeBuhr’s property. Applicant Michael Kelsey stated that the Iowa Department of Natural Resources requires a 300 yard shot fallout distance. The Board inquired as to where the prior shooting range was located. Applicant Nancy Kelsey identified it on Exhibit 2. The prior shooting range was located to the South of the proposed range right across the railroad tracks. Board of Adjustment Member Bill Fluhrer inquired as to how long the prior shooting range operated. It was determined that it operated from 1988 until 2007. Planning & Zoning Commission Member Duane Koch inquired as to whether the Kelseys received any complaints at any time during their prior operation. It was determined that they received no complaints.
The hearing was then opened up to neighbors who supported the proposed shooting range. There were no neighbors present to speak in support of, so the hearing was opened up to neighbors who opposed the proposed shooting range. Jennifer Ehlebracht stated that she had a statement she wanted to read to the Board from herself. She also had a statement from her husband, Travis Ehlebracht, who could not be present for the hearing due to his work schedule. Jennifer’s mother-in-law, Nancy Ehlebracht, would be reading that statement on Travis’ behalf. Copies of the statements were provided to the Board Members along with a Petition against the proposed shooting range, an information sheet on the Technical Guideline Environmental Management at Small Arms Firing Ranges and emails between Travis Ehlebracht and Dan Cook & Ben Berka with the Iowa Department of Natural Resources, all of which are attached as Exhibit 4. Planning & Zoning Commission Co-Chair requested that Mrs. Ehlebracht identify actual neighbors who signed the petition against the shooting range. They included Marilyn & Harold Jorgensen, Ray & Nancy Ehlebracht, Hoyt Tatum, Alan Burnett, Travis & Jennifer Ehlebracht, and Jeff White.
Jennifer Ehlebracht then read her statement. Mrs. Ehlebracht stated that they recently built their dream home to the Northwest of Rudd which is adjacent to the proposed shooting range. Jennifer and Travis have 2 children who are ages 3 and 17 months with another one on the way. They have 10 acres they currently own and are in the process of purchasing 35 additional acres from her in-laws. On their days off, Travis and Jennifer enjoy four wheeling, horse back riding, hunting, working in the yard and just being outside with their children. They planted over 400 trees over the last year and are very environmentally conscious. Jennifer stated that the noise from the proposed sporting clay shooting range will restrict these outside activities especially during summer and holiday weekends, that they put in a geothermal system and plan to install a windmill to be more energy efficient and the sporting clay shooting range will decline the value of their home as well as surrounding homes and properties, and is concerned about the safety of her children as 3 people had been hit by a spray of shots while the previous range was in operation, one of which was a City employee working in the City lagoon who thought it would be safe because the direction of the shooting was not supposed to be toward the lagoon and two who were walking on 160th Street and who wished to remain anonymous. Additionally, Jennifer stated that she is concerned about lead as it is one of the most deadly toxins on the planet and she is concerned about lead being deposited in the soil and water and its affects on the environment and her children, as well as the animals they hunt and enjoy including turkeys, ducks, geese, pheasant and deer that graze throughout their property. A creek also runs through the range and one piece of lead shot ingested by a duck can kill it. Jennifer also stated that history shows that there was no care to reclaim and recycle the lead from the prior shooting range and they are seriously considering leaving the community if the shooting range is allowed to open up.
Nancy Ehlebracht read Travis Ehlebracht’s statement. Travis stated that he was home on July 8, 2010, when Ben Berka of the Iowa DNR conducted his noise assessment on behalf of Mr. Kelsey and that he thought the assessment was flawed as Mr. Berka reported the winds to be out of the Northwest at 5-10 mph and the Ehlebracht residence is Northwest of the proposed shooting range. Additionally, Travis stated that Mr. Berka told him that wind had little effect on the noise level, which is contrary to the Technical Guideline Management at Operating Outdoor Small Arms Firing Ranges that is used by Mr. Berka as a guide to sporting clay ranges and which states: ‘Weather is particularly important on the propagation of shooting ranges. During windy conditions the sound from the range may be hardly audible in upwind locations . . .’ Travis stated that upon Mr. Berka performing the noise assessment, he checked the DTN which reported the winds to be northwest at 15 mph. Another weather report on http://www.ncd.noaa.gov confirmed this report of wind direction from northwest at 15 mph with gusts of 23 mph from the north. Additionally, no one was with Mr. Kelsey when he was shooting during the sound assessment to confirm he was shooting in the right direction. Travis also stated that he received the map showing the 10 proposed shooting stand sites (Exhibit 1) and that 5 of the stand sites were near his Southern property line and he was concerned that his property would actually be within the 300 yard shot fallout distance required by the DNR, causing safety concerns. Additionally, the shooting stands a/k/a shooting boxes allow a shooter a 180º shooting area to hit targets that are moving through the air. Travis also stated that the DNR directed Mr. Kelsey not to shoot into the water or wetlands, but that the 10 proposed stand sites show that the shooting will go over Flood Creek into highly erodible land and into a drainage stream that runs through his property into Flood Creek. 5 of the proposed stand sites show that the shooting will go toward a slough that runs through his property where ducks and geese nest and that lead shots can be devastating to them. Additionally, a floodplain map obtained from the County Engineer shows that the shots will be directed into the floodplain along Flood Creek which is frequently underwater, which will cause lead shots to be deposited into the streams and creeks in this area. Upon looking up a description of a sporting clay course on http://www.iowadnr.gov/law/shootingsports/games.html which was referenced by Mr. Berka, Travis learned that clay courses change frequently sometimes daily, which would make it difficult to control where the shot and debris may fall. Travis also stated that the Technical Guideline Environmental Management document and Mr. Berka stated that lead can not be shot into the water and that once lead shots hit the target, they may become deformed or deflected and fall on the ground nearby. Even if a person is not intentionally shooting into the water, there is still a good chance it will end up in the creek or drainage area if the targets are shot over the water. Additional concerns include what would happen if the Kelseys walked away from the shooting range because the cost to clean up the lead would be astronomical and who would be responsible for the clean up if they did walk away, and what would stop the Kelseys from expanding their operating hours in the future. Travis stated that if the shooting range was approved, it would have a serious impact on him and his future residence.
Marilyn Jorgensen also spoke in opposition of the clay shooting range, stating that she lives on the North end of Rudd and could not sit on her deck when the prior shooting range was in operation because of the noise. Mrs. Jorgensen also stated that there have been claims that there is an area of the old shooting range where the grass would no longer grow because of the effects of the shooting range on the land.
Jeff White also spoke in opposition of the clay shooting range, stating that he was also concerned about the noise and the effect on his property value. He bought his property 1½ years ago and if a shooting range was near the property when he purchased it, he would have been greatly concerned and it may have impacted his decision to purchase the property. Additionally, Mr. White stated that he lives downstream from the proposed shooting range and is concerned about the impact lead contamination would have on his well. Board of Adjustment Board Member John Gohr inquired as to whether the previous shooting range was in operation when Mr. White purchased his property and it was determined that it was not.
Susan Dahms also spoke in opposition of the clay shooting range, stating that they have lived in their home for 15 years. When the prior shooting range was in operation, every holiday and sunny afternoon they would have to deal with the shooting noise and were unable to invite anyone over because the noise was such a nuisance. The Board inquired as to whether Mrs. Dahms knew about the shooting range when she purchased her home and it was determined that she did know about the shooting range and in fact her previous home was across town and was much closer to the old shooting range.
Jacob Grillo also spoke in opposition of the clay shooting range, stating that he purchased his home 2½ years ago and he has 7 children and a brain injury that causes him to have migraine headaches. Mr. Grillo’s 10 year old son is also autistic and is strongly affected by sudden noises. Mr. Grillo also stated that he had a dog with a barking problem that was a nuisance to his neighbors. He spent a lot of money on shock collars and other devices to keep the dog quiet. You can do things to control a barking dog, but you can not control the noise from the gun fire on a shooting range. Mr. Grillo inquired as to whether the City would have to change its ordinance as it currently states that guns can not be fired in City limits. Applicant Kelsey stated that the City ordinance states that you can not fire within City limits unless consent or special approval is obtained from the City Council.
Ray Ehlebracht also spoke in opposition of the clay shooting range, stating that 1 lead shotgun shell has 1 1/8th oz. of lead and each round has a 100 shells. If 30 rounds were spent 8 times a month during the 6 month operational period a total of 10,123.2 pounds or 5.0616 tons of lead would be going into the environment each year. During the Kelseys’ 19 years of operation at their previous range, a total of 96.17 tons would have been put into the environment if 30 people used the facility 8 times a month during the 6 month operational period. If abandoned like the previous shooting range, the DNR would consider this a Hazardous Waste Site and Mr. Ehlebracht would like to know who is responsible for the cleanup.
Jeff Miller spoke again and stated that if the lead numbers presented by Mr. Ehlebracht were anywhere close to correct he would be even more concerned because he has 10 grandchildren who visit him.
Attorney Patrick Vickers then gave his presentation on behalf of the Ehlebrachts. Attorney Vickers presented the Board Members with a Memorandum in Resistance to the Kelseys’ Application for Conditional Use which is attached as Exhibit 5. Mr. Vickers read the Memorandum to the Board reiterating the Ehlebrachts’ concerns of serious environmental, safety, noise and property value consequences. Mr. Vickers referenced an email from Ben Burka that was attached to the Memorandum as an exhibit whereas Mr. Burka recommended a 300 yard distance shot fallout for sporting clay shooting ranges. Also attached to the Memorandum were three maps with an a x at 3 different proposed station sites with a circle representing the 300 yard shot fallout from that specific station. The 1st map shows that highly erodible land is within the 300 yard buffer zone, as well as a drainage ditch that empties into Flood Creek. If accidental discharge or carelessness were to occur, it is possible for the shot fallout to reach the wooded area to the Northwest and adjacent property, which is the property owned by the Ehlebrachts. The 2nd map also shows the highly erodible land and drainage ditch within the 300 yard buffer zone, as well as the possibility of shot fallout to reach cropland to the Southeast and adjacent property if accidental discharge or carelessness were to occur. The 3rd map shows Flood Creek being in the 300 yard buffer zone, which could cause lead contamination of the creek to occur. Adjacent properties to the West and South of the proposed shooting range would also be in the 300 yard buffer zone if accidental discharge or carelessness were to occur. Also attached as an exhibit to the Memorandum was an email from Dan Cook with the DNR who stated that ‘shooting ranges that have its shot fallout area in a wetland or stream is in violation of the clean water act and will get the EPA’s attention very quickly’. Another exhibit attached to the Memorandum shows the flood plain with respect to the drainage ditch, which indicates the risk of contamination would be greatly increased as a result of normal flooding. Additionally, Mr. Cook stated that tillable farm ground in a shot fallout area is also dangerous because the crops can uptake the lead, thereby contaminating grain, silage, alfalfa, or other crops. Generally shot fallout is contained in the top 3 inches of soil, but plowing the soil allows it to saturate into the fist foot of soil. Also attached to the Memorandum was a statement from Joel Miller about his experience of being struck by a shot fired from the prior range while he was spraying the city lagoon and that it was his understanding the range was not supposed to be shooting in the direction of the lagoon. Mr. Vickers also stated that Mr. Straube reported to the Ehlebrachts that his home had been struck by pellets when the previous range was open. Mr. Straube owns the property where the previous range operated on. Lead is also a safety concern as Mr. Cook stated that a significant buildup of lead over time at shooting ranges can create problems that can impact human health and the environment. Mr. Vickers also suggested the County examine the previous shooting range to see how much lead has been found and whether the Kelseys have taken any action to remediate it. Attached to the Memorandum was a chart showing how many tons of lead could possibly be contaminating the site over the 19 year operational period if 30 rounds were shot 8 times a month during the 6 month operational period as discussed by Ray Ehlebracht earlier in the hearing. Mr. Vickers also stated that reports were given to his clients that a local church was forced to change its hours of service due to the noise of the previous range and its main day of operation being on a Sunday, and that noise issue is not limited to decibel level but also as to what time frame the noise occurs. Also attached to the Memorandum is a letter from Douglas & Teresa Yegge who own property across the road from the proposed shooting range, but who currently reside in DeWitt, IA, about 1½ miles from a shooting range. In their letter, Mr. & Mrs. Yegge state that even at that distance, they can clearly hear the shooting both in the morning and at night and although it is not terrible, it is somewhat unpleasant to listen to. Also attached to the Memorandum is a letter from Ann Kabele who is a Broker Associate with Stewart Realty Company out of Charles City. Ms. Kabele stated that she has evaluated real estate for 14 years and is familiar with Ehlebrachts’ property. In her opinion, the value of the Ehlebrachts’ property would be significantly and adversely affected by the proposed use of the adjoining land and that the quality of life, peace and quiet, as well as the effect of the proposed use of the adjoining property would have on the Ehlebrachts’ livestock is significant. Realtor Thomas Schwab pointed out that Mr. Vickers’ map shows the northern portion of the subject property as also being highly erodible land (HEL) when the USDA map shows it as being Not Highly Erodible Land (NHEL). The map, which is attached hereto as Exhibit 3, was consulted and Mr. Vickers agreed that he overlooked this, however, the ground which the shooting will occur over is still highly erodible land as shown on Exhibits 1, 2, and 3 attached hereto. Planning & Zoning Commission Co-Chair Susan Nelson inquired as to how the highly erodible land affected the proposal. Mr. Vickers stated that highly erodible land has a greater propensity for lead contamination in the floodplain.
Nancy Ehlebracht stated that the timber owned by them adjacent to the proposed clay shooting range is in a forest project plan and 300 seedlings had been planted on the property. Mrs. Ehlebracht read some information to the Board Members concerning steel shots and although they do not cause the same contamination hazards as lead, they still embed into trees which will damage and possibly kill off the trees.
The Kelseys were then given the opportunity to respond. Applicant Michael Kelsey stated that a lot of the noise concerns would be remedied by the tree buffer he planned to put in around the entire land. Additionally, the clay targets are biodegradable and will degrade in 2 years or less. Applicant Kelsey also stated that they will be using strictly steel shots, no lead. Inquiries were made as to the remediation of the previous shooting range. Applicant Michael Kelsey stated that Dan Cook would be coming up to see where the located areas are and whether there is any heavy location, so he does not have any idea at this point what the parts per million in the soil are. Ben Berka with the DNR spoke concerning remediation. Mr. Berka stated that Dan Cook was the soil remediation specialist and was unfortunately unable to come to the hearing. Mr. Berka stated that the Kelseys were well aware of the EPA’s requirements and their responsibility of cleaning up of the old range. Mr. Berka stated that what typically happens for soil remediation is the DNR’s environmental services section can provide testing. They would lay out a grid on the old site and the responsibility would be to clean it up to below the residential standard of 400 parts per million. Planning & Zoning Co-Chair Susan Nelson inquired as to how you would do that and it was determined that Dan Cook would be the expert on that, but based on his experiences Mr. Berka stated that a sampling grid would be laid out and testing would be done to identify any areas with high concentrations of lead. Planning & Zoning Co-Chair Susan Nelson inquired as to whether the DNR had any environmental concerns with steel shots and it was determined that the same regulation of the 300 yard shot fallout would still be required but there are no environmental concerns at this time.
Planning & Zoning Co-Chair Susan Nelson inquired as to whether Mr. Berka had any additional information that the Boards may find helpful in making their decision. Mr. Berka referenced his Sound Testing Report which is attached as Exhibit 6. Mr. Berka explained that they selected a set of firing points they assumed would be the most detrimental to neighbors and to the City of Rudd. For some background information Mr. Berka provided a range of sounds in his report and what decibels they measure at. A whisper or rustle is 20 decibels, a private office is 40 decibels, an average office is 60 decibels, an average range of conversation is 63 to 65 decibels, a motorbus or clapping in a conference room is 80 decibels, a 12 gauge shotgun at 15 feet is 95 decibels, the threshold of pain is 125 decibels, and a jet plane at 100 feet would be 130 decibels which would be the threshold for hearing loss. A little physics on sound and the doubling of sound, sound pressure levels can not be added arithmetically and therefore, 2 simultaneous shots at 99 decibels would not equal 198 decibels but would rather increase the total sound level by only 3 decibels. If you fire 2 shots simultaneously, it would equal 102 decibels; 4 shots would equal 105 decibels; 8 shots would equal 108 decibels. Additionally, for every doubling of distance the sound pressure levels are reduced by 6 decibels. If you fire 1 shot at 20 feet it would equal 99 decibels; at 40 feet it would equal 93 decibels, at 80 feet it would equal 87 decibels, etc. Mr. Berka also provided information on vegetation and sound and stated that your best sound mitigation occurs with dense foliage or evergreen trees. Planning & Zoning Co-Chair Susan Nelson inquired as to how he would define dense, for instance if the Board of Adjustment were to impose conditions requiring the planting of vegetation, what would be dense. Mr. Berka stated that the guidelines from the National Wildlife Association state that 100 meters can reduce noise by up to 23 decibels. Planning & Zoning Co-Chair Susan Nelson inquired as to how close together the trees would have to be to be considered dense and it was determined that Mr. Berka did not know. Applicant Nancy Kelsey stated that the Forestry Division of the NFSA or National Farm Service Agency will map out and determine what type of trees they need to plant and how far apart they need to be. Planning & Zoning Commission Co-Chair Susan Nelson inquired as to whether Mr. Berka was present during Mr. Ehlebracht’s criticism of his sound testing. Mr. Berka stated that Mr. Ehlebracht indicated the winds were 15 mph and the figures he included in his report of 5-10 mph were based from the local morning forecast, and that direction of the wind coming from the Northwest was correct. Mr. Berka went on to explain how they conducted the sound testing. For each site sampling point, an ambient sound was collected, or sound occurring in that environment for 1 minute. Then 3 shots were fired from each point, and the readings from those shots were averaged. The firing points selected were based on the areas that Mike thought would be impacted most. The 1st sampling point was taken from the northern most residence on 6th Street in Rudd and readings were taken from firing points A & B, as shown on the map. Firing point A gave an average shotgun fire reading of 49.13 decibels, point B gave an average reading of 55.53 decibels, and the ambient reading at sampling point 1 was 38 decibels. Sounds observed included dump trucks (77.8 dB) and cars (68.4 dB). The 2nd sampling point was from the east fence of the Ehlebracht residence and readings were taken from firing points C & D, as shown on the map. Firing point C gave an average shotgun fire reading of 48.77 decibels, point D gave an average reading of 47.93 decibels, and the ambient reading at sampling point 2 was 43 decibels. Sounds observed included a semi-truck (52 dB) and a song bird (61 dB). The 3rd sampling point was located on the Northeast portion of the Ehlebracht property on the North edge of the woods and readings were taken from firing points C & D, as shown on the map. Firing point C gave an average shotgun fire reading of 62.47 decibels, point D gave an average reading of 55.03 decibels, and the ambient reading at sampling point 3 was 39 decibels. Planning & Zoning Co-Chair Susan Nelson inquired as to whether it was Mr. Berka’s opinion that the addition of this shooting range will not increase sound level pressure above those that are already occurring in the environment and it was determined that this was in fact Mr. Berka’s opinion.
Planning & Zoning Co-Chair Susan Nelson inquired concerning the floodplain, wetlands, creek and drainage district and whether Applicant Kelsey wanted to address those concerns. Mr. Kelsey stated again that prairie grass will be planted on 7 acres and also the steel shots will be used exclusively on the course and should resolve those concerns. Discussion was had concerning whether Mr. Kelsey’s range would be firing over the creek and he stated that it would, but with steel shots. Planning & Zoning Board Member Duane Koch inquired as to whether there were any environmental concerns related to the biodegradable targets and Mr. Kelsey stated that they do affect the growing rate of the grass after they accumulate if they are not picked up, but all you need to do is apply lime and it will take care that issue.
Planning & Zoning Commission Co-Chair Susan Nelson inquired as to if the Board of Adjustment were to impose conditions that they will be required to use steel shots only, would that address the Ehlebrachts’ concerns about lead. Mr. Vickers responded on behalf of the Ehlebrachts’ by stating that he does not believe it would address those concerns. He pointed out to the Board that the Kelseys had a business plan and a presentation that began the hearing and not one mention was given that steel shot would be used as opposed to lead. It did not come up until the Ehlebrachts brought up their concerns with the lead and Mr. Vickers inquired as to how you can force compliance with that condition. It is Mr. Vickers understanding that steel shot is more expensive then lead and if you have 150 people shooting during a tournament, how can you ensure that all of those people are complying with that requirement. If the economic impact of requiring steel shot may result in people not coming to the range, surely there is a temptation to compromise with respect to that requirement. Mr. Vickers also stated that he feels it is very relevant to look at the prior situation and how it was treated. Mr. Vickers stated that he had not heard one word about any removal of lead from that prior site. He heard that something should be done every 5 years to address that issue and if those environmental concerns were not taken seriously at the previous site, how do they know the environmental concerns (i.e. the exclusive use of steel shot) will be sufficiently addressed at the proposed site. Regardless of whether it is lead or steel, Mr. Vickers stated that there is a proper buffer zone recommended by the DNR as shown as Exhibit A to his Memorandum, and that it is true that if a person only shoots straight ahead in the direction as identified in the diagram provided by Mr. Kelsey (Exhibit 1 attached hereto), that buffer zone will not include property outside of the Kelsys’ land, however, that is not what happens. Mr. Vickers stated that there have been particular illustrations presented to the Boards about how shots strayed from the previous site. Also these are moving targets and you have 150 people of varying age and experience during a tournament and that buffer zone does extend out over adjacent property owners and if someone is struck by fire they will not care if it is lead or steel. Mr. Vickers further stated that, when you contemplate the possibility of misdirected shots, accidental discharge, the movement of the shooting station, that buffer zone extending out over adjacent property owners is significant enough and is sufficient evidence for denial, as well as Mrs. Ehlebracht’s observations of the effect steel shots will have on timber. Mr. Vickers finds it incredible that someone from the DNR would say there are no environmental consequences associated with steel shot being shot into a floodplain and creek and that it will have no impact on fish or wildlife.
Planning & Zoning Commission Member Duane Koch asked if Mr. Kelsey could respond to that. Mr. Kelsey stated that as far as direction, he indicated on his map (Exhibit 1 attached hereto) with arrows the direction that the shooters will shoot. To reiterate, Mr. Kelsey stated that his range will not be shooting towards anyone’s house or property and everything has been measured out to ensure that. Planning & Zoning Commission Co-Chair Susan Nelson inquired as to whether Mr. Kelsey could educate her on clay shooting ranges, will everyone who comes to this range be standing at the points indicated on the maps and shooting in the direction of the arrow or will people be wandering around and shooting at things. Mr. Kelsey stated that it is completely organized and people do not just wander around shooting, they come to the stations which will be located at the points indentified on the map. Planning & Zoning Commission Co-Chair Susan Nelson inquired as to what the stations were. Applicant Nancy Kelsey asked the Board to imagine it like a golf course, you come up to a stand made up of PVC pipe, put your gun in, the target is released, and the shooters shoot the target. The stands themselves are not moved, however, the target releases can be moved to throw the targets in different ways but the direction of the shots will always be the same. Mr. Kelsey will arrange the stands and releases himself, and will be able to move them in such away to ensure no shot fallout will reach adjacent properties. Additionally, they can control the angle of the gun and how far to the left or right it can move. The targets will also be moving from left to right.
Jennifer Ehlebracht pointed out that this did not stop people from getting hit with shot fallout from their previous range, even though they were not even supposed to be shooting in the direction the person who was hit was located. Mr. Vickers reiterated how history has proven that the Kelseys lacked concern for environmental factors during the operation of the prior shooting range and how the steel bullets were brought to the table after the lead concerns had been discussed. Thomas Schwab spoke on behalf of the Kelseys and started off by apologizing to Mr. Vickers for interrupting him during his presentation. Mr. Schwab went on to say that the Kelseys had approached him concerning the exclusive use of steel shots prior to the hearing and was planning to call the Ehlebrachts to disclose that fact to them. Mr. Schwab stated that he advised the Kelseys that the Ehlebrachts were going to beat them up at the hearing and they should not disclose that information until after the fact so as to have a strategic game plan. Additionally, Mr. Schwab stated that he feels that property value is in the eye of the beholder and one person’s perception of a something as declining their property value may not be the same perception as another who may feel that same something would be an asset to be close to. Although he respects Ms. Kaeble he does not feel that Ms. Kaeble or anyone could definitively say that this shooting range increases or decreases anyone’s property value. Mr. Vickers stated that he was very disturbed to hear this information and that it was unfortunate that the Chair of the Planning & Zoning Commission would advise the applicants in such a way as to waste the Board Members’ time, the Ehlebrachts’ and other neighbors’ time, and his own time by even discussing the concern with lead and it still does not change the fact that there are still noise, safety and the decline of property values that are still a very big concern for the Ehlebrachts and other neighbors.
The hearing was then opened up to others who wanted to speak in support of the application. Several people spoke in favor, including the Kelseys’ sister/sister-in-law, Lori Wickman with the Mason City trap team, as well as another gentleman with the Mason City trap team and a mother whose son participates on the Mason City trap team. They all spoke as to the Kelseys integrity and how they always do the things they say they will do; the sport in general and how it is a very safe and controlled sport contrary to the belief that it is a bunch of Neanderthals running around and shooting at things; the perception of gun fire as being a bad thing and that is the reason it gets attention even though it is comparable in noise decibel as many other things existing in the environment already including birds, traffic, etc.; the DNR’s regulation of lead shots near waterways, floodplains, rivers; the asset this would be to the community by having people use local convenience stores, restaurants, and hotels; and the hiring of many young people who are then able to earn an income and learn about the sport and the safety of gun shooting and handling.
Jennifer Ehlebracht pointed out that her husband used to shoot at the previous range and is well aware of how the sport works, however, that still does not change their concerns with safety, property value and noise. Planning & Zoning Commission Co-Chair Susan Nelson inquired as to whether there were any more statements or comments. There were none.
A motion to recess for the Board of Adjustment to have discussion and make their decision was made by Planning & Zoning Commission Michael Goddard, and was seconded by Duane Koch. Roll call vote was made and the motion was unanimously approved.
The Board of Adjustment moved into discussion. Discussion was had concerning the decibel level. Chair Ann Sullivan stated that during hunting season, she hears shots going off around her property all of the time. The initial shot usually grabs her attention but she quickly gets used to the sound. Discussion was had concerning the DNR sound testing report. Board Member Bill Fluhrer stated that these numbers are just numbers, he is having a hard time wrapping his mind around what they mean exactly and how they actually sound. Board Member Fluhrer stated that he would like to visit the property to get a better idea of what the property looks like and what it sounds like. Administrator Sherman advised the Board that was their choice and they were able to visit the property if they felt they needed to prior to making a decision. Planning & Zoning Commission Co-Chair Susan Nelson advised that Board of Adjustment that they can set conditions so if they did allow it they can set conditions about the way they would run it, in other words if they say they will do a certain thing the Board of Adjustment can say you will also do that. Board Member Bill Fluhrer stated that as a Board they did not even know what it sounds like or how it will impact without physically hearing it. Chair Ann Sullivan stated she was disappointed that the City of Rudd did not have any input or attend the hearing. It was determined that the City was told on the phone and was sent a written notice, and that Administrator Sherman advised them that they should attend. Discussion was had concerning contamination and the Board felt that was no longer a concern, although the noise and safety issues were major factors that they wanted to look into more. Discussion was had concerning the number of guns they would want to be shot at the same time. It was determined that they would want a minimum of 4 guns going off at the same time. Discussion was had concerning where they would be located when the shots were being fired. It was determined that they would want to be in all the same spots the DNR was during their sound testing.
A motion to table the decision until such a time as a quorum of the Board of Adjustment was able to appear at the subject property and listening sites that were visited by the DNR with 4 simultaneous guns being shot while at each listening site location was made by Dennis Staudt, and seconded by Bill Fluhrer. Roll call vote was made and the motion was unanimously approved.
The Planning & Zoning Commission reconvened. A motion to table their decision until such a time as the Board of Adjustment made its decision was made by Duane Koch, and was seconded by Michael Goddard. Roll call vote was made and the motion was unanimously approved.
A motion to adjourn the hearing was made by Michael Goddard, and was seconded by Duane Koch. Meeting adjourned.
Jeff D. Sherman