of a Task Force to study the feasibility of Agri-tourism as a land use in Eureka Township. If it is determined that Eureka citizens, after attending an open house and expressing their opinions and ideas, are interested
in an Agri-tourism land use, the Task Force will continue with the complex task of developing a definition and ordinance which will allow the use. The Task Force has scheduled the Open House to be held on December 12. Citizens can expect to receive a notice of the meeting inviting their attendance and input prior to this date.
in an Agri-tourism land use, the Task Force will continue with the complex task of developing a definition and ordinance which will allow the use. The Task Force has scheduled the Open House to be held on December 12. Citizens can expect to receive a notice of the meeting inviting their attendance and input prior to this date.
To have full force and effect of law, an ordinance must not be in conflict with any higher law such as state or national law. Professional planners and other consultants can be an invaluable resource to a Township that is beginning the planning and zoning process. Planners can help identify issues of which the Township may be unaware. Legal assistance is very important to help ensure that all documents have been properly drafted and that all procedural requirements have been followed.
The Task Force meets on Wednesday evenings at the Town Hall from 7:00 - 9:00 p.m. All citizens are welcome to attend the meetings which are posted on the Eureka web site; however, they are not allowed to participate.
I attended the November 13 Task Force meeting which I found quite interesting. I believe it is imperative that the members of the Task Force put their personal agendas aside and have an understanding as to the specifics of the delegated task. When I left I was not convinced every member of the Task Force had reached this important point. It is also my opinion that the Chair, who is exceptionally competent, be allowed to set the agenda and steer the meeting. In the future, I hope he will be allowed to do so.
Atina Diffley, a Task Force member, offered information which I felt is quite valuable in our study of Agri-tourism. Atina stated the following:
" I spoke with Bob Patton at the Department of Agriculture.
" I spoke with Bob Patton at the Department of Agriculture.
His work with the department is land use. Agri-tourism is a growing area in his work, and he sees a need to support understanding of it from a land use perspective. His idea is to create materials to support jurisdictions to create their ordinances. He's working on the idea but has nothing ready now beyond willingness to come and talk with us."
"The work on the definition is being done by a non-profit Renewing the Countryside. Brett Olson, co-founder and the Creative Director at Renewing the Countryside, stated "we have been attempting to go at it from a state-wide liability stand point. We have a definition for agri-tourism that has passed bi-partisan approval and will likely slide through without opposition in this coming legislative session."
"Bob Patton stated that when developing an Agri-tourism ordinance the process should not be hurried and 2 years is a reasonable time frame.
In preparation for attending the Agri-tourism open house at the Eureka Town Hall on December 12, I believe it serves the public well if citizens have a basic understanding of the procedure the Task Force should consider when developing an ordinance which would allow the Agri-tourism land use. The following information is perhaps a step in understanding the complex process.
An Ordinance Must Be: (Ordinance Drafting and Enactment by Steve Lobertini)
In preparation for attending the Agri-tourism open house at the Eureka Town Hall on December 12, I believe it serves the public well if citizens have a basic understanding of the procedure the Task Force should consider when developing an ordinance which would allow the Agri-tourism land use. The following information is perhaps a step in understanding the complex process.
An Ordinance Must Be: (Ordinance Drafting and Enactment by Steve Lobertini)
1." Consonant with the constitution and statutes of the United States and of the State, and
with the general principles of the common law;
2. Authorized by the charter of the corporation or general laws applying thereto;
3. consistent with the general objects and purposes of (the city's) creation;
4. general, and applicable alike to all persons and property affected by them;
5. certain in their application and operation, and their execution not left to the caprice of
those whose duty it is to enforce them;
6. just;
7. adapted to the locality and affairs which it is intended they shall control and affect;
8. general in their nature;
9. impartial in their operation and effect.
[An ordinance MUST NOT] (my emphasis)
10. be harsh and oppressive; [or]
11. discriminate in FAVOR OF OR AGAINST any class of persons or property. (my
emphasis)
emphasis)
An ordinance which is free from the objectionable."
The following is information from Drafting Ordinances and Resolutions by : Kent Sulem, MAT Attorney: (Section V., pages 6-7)
"V. General Considerations.
When drafting resolutions and ordinances, a township should carefully consider exactly what it wants to accomplish. Thought should be given to the cost of enforcement, and the likelihood that the regulation will achieve the desired result. In many situations, the township would be well advised to study the issue, obtain sample ordinances, and consult with their township attorney and possibly other experts. After the township knows what it wishes to accomplish, the following should help the document achieve the goal:
A. Use clear, simple, and contemporary language - Terms of art, trade jargon, and non-standard language should be avoided. Further, terms should be used as they are being used at the time of adoption. Words such as "Wheretofore", "Hereinafter", and similar terms should be avoided. Resolutions and ordinances should be drafted so that the majority of people can reasonably be expected to understand them. Showing off the author's vocabulary will not result in comprehension and thus will reduce compliance.
B. Avoid the confusing use of pronouns. Use of terms such as "said" as in "said persons"; "the same"; and similar phrases only serve to obscure what is actually being referenced. Further, if pronouns such as "he" or "she" are to be used, be sure that the person being referenced is clearly identifiable.
C. And/Or - An old Minnesota court case (Podany v. Erickson, 235 Minn. 36 (1951)) held that the term "and/or" had no legal meaning and could not be enforced. While this case has never been overturned, given the increasing acceptance and use of "and/or" it is possible that a court today would give legal recognition to the term. If at all possible, however, the term should be avoided.
D. Gender Neutrality - The easiest way to make ordinances gender neutral is to use titles whenever possible. The second preferred method would be to use the phrase "he or she" (in either order). The use of “s/he" can be hard to read if a person is not paying close attention to the words. Finally, as a catch-all provision, the township may wish to include a provision in the body of the document that provides something similar to, "Any use of the masculine shall include the feminine and vice-versa."E. Be definitive - The word "should" does not belong in ordinances, and would have a limited role in resolutions. Definitive language should be used. Historical drafting guides such as Strunk & White's The Elements of Style state that the term "must" is preferred to the term "shall". Modem drafting styles, however, show acceptance of the use of "shall" to show that something is mandatory. The term "may" should be used to indicate when something is permissible but not mandatory.
F. Be specific but not too limiting. Language that is too broad or vague runs the risk of being found unconstitutionally vague. On the other hand, language that is too specific can make a regulation too difficult to enforce or limit its practical benefit to the community.
G. Keep things short, labeled, and punctuated - Sentences, paragraphs, and ultimately the entire document should be kept as short as possible to enhance readability and comprehension. Further, the use of headings and subdivision titles can increase clarity. Finally, it is very important that punctuation be used accurately. There is growing acceptance of the dropping of the final comma in a list, but this practice can result in an ambiguous regulation.
H. Define all key terms - One of the first sections of the body of an ordinance should set forth the definitions and rules of interpreting all key terms used throughout the ordinance. Be sure that the definition is specific and not circular (i.e. do not define "Light Commercial District" as being a district where light commercial activities are allowed.) It can be helpful to include examples, but if a list of examples is to be used, it should be prefaced with, "The term _ shall include, but not be limited to..." How a term is to be literally interpreted and applied is equally important to how it is defined. For example, when defining a setback distance, provide how the measurement is to be made (i.e. from what point to what point.) Further, catch-all provisions such as "The singular shall include the plural and vice-versa", or "The present tense shall include the future tense", can be used to prevent challenges based on overly literal interpretations.
I. Use space and time savers whenever possible - Adopting statutes by reference can save a lot of time and space when drafting an ordinance. On the other hand, if the township does not have easy access to current statute books, adoption by reference can lead to confusion as no one will have access to what is actually referenced in the ordinance. Providing a section that states all references to a particular township official shall include his or her authorized designee can also be a time and space saver and allow more flexibility in the day to day operations of the township. Finally, instead of listing individual fees in separate ordinances, the township may wish to consider the adoption of a fee schedule that is adopted by reference in the main text of the ordinance. By creating a list of all fees and adopting it as a separate document, the board can amend the entire list at once without having to search through all ordinances and adopting separate amending ordinances for each one imposing a fee
J. State needed information - Who is responsible for enforcement, etc? Who is responsible for distributing and collecting applications and other forms? Who is to conduct inspections? Whose opinion must be sought before a request can be approved? These questions should be answered in the text of the ordinance.
K. Due Process and other Constitutional Protections - Regulations adopted by the town board cannot deny any person of his or her protected rights. Due process protection needs to be considered when debating enforcement mechanisms.."
Drafting an ordinance is a very difficult , time consuming and challenging task which deserves the time, professionalism and due diligence, while taking into consideration the long term outcome of the rule of law.
"V. General Considerations.
When drafting resolutions and ordinances, a township should carefully consider exactly what it wants to accomplish. Thought should be given to the cost of enforcement, and the likelihood that the regulation will achieve the desired result. In many situations, the township would be well advised to study the issue, obtain sample ordinances, and consult with their township attorney and possibly other experts. After the township knows what it wishes to accomplish, the following should help the document achieve the goal:
A. Use clear, simple, and contemporary language - Terms of art, trade jargon, and non-standard language should be avoided. Further, terms should be used as they are being used at the time of adoption. Words such as "Wheretofore", "Hereinafter", and similar terms should be avoided. Resolutions and ordinances should be drafted so that the majority of people can reasonably be expected to understand them. Showing off the author's vocabulary will not result in comprehension and thus will reduce compliance.
B. Avoid the confusing use of pronouns. Use of terms such as "said" as in "said persons"; "the same"; and similar phrases only serve to obscure what is actually being referenced. Further, if pronouns such as "he" or "she" are to be used, be sure that the person being referenced is clearly identifiable.
C. And/Or - An old Minnesota court case (Podany v. Erickson, 235 Minn. 36 (1951)) held that the term "and/or" had no legal meaning and could not be enforced. While this case has never been overturned, given the increasing acceptance and use of "and/or" it is possible that a court today would give legal recognition to the term. If at all possible, however, the term should be avoided.
D. Gender Neutrality - The easiest way to make ordinances gender neutral is to use titles whenever possible. The second preferred method would be to use the phrase "he or she" (in either order). The use of “s/he" can be hard to read if a person is not paying close attention to the words. Finally, as a catch-all provision, the township may wish to include a provision in the body of the document that provides something similar to, "Any use of the masculine shall include the feminine and vice-versa."E. Be definitive - The word "should" does not belong in ordinances, and would have a limited role in resolutions. Definitive language should be used. Historical drafting guides such as Strunk & White's The Elements of Style state that the term "must" is preferred to the term "shall". Modem drafting styles, however, show acceptance of the use of "shall" to show that something is mandatory. The term "may" should be used to indicate when something is permissible but not mandatory.
F. Be specific but not too limiting. Language that is too broad or vague runs the risk of being found unconstitutionally vague. On the other hand, language that is too specific can make a regulation too difficult to enforce or limit its practical benefit to the community.
G. Keep things short, labeled, and punctuated - Sentences, paragraphs, and ultimately the entire document should be kept as short as possible to enhance readability and comprehension. Further, the use of headings and subdivision titles can increase clarity. Finally, it is very important that punctuation be used accurately. There is growing acceptance of the dropping of the final comma in a list, but this practice can result in an ambiguous regulation.
H. Define all key terms - One of the first sections of the body of an ordinance should set forth the definitions and rules of interpreting all key terms used throughout the ordinance. Be sure that the definition is specific and not circular (i.e. do not define "Light Commercial District" as being a district where light commercial activities are allowed.) It can be helpful to include examples, but if a list of examples is to be used, it should be prefaced with, "The term _ shall include, but not be limited to..." How a term is to be literally interpreted and applied is equally important to how it is defined. For example, when defining a setback distance, provide how the measurement is to be made (i.e. from what point to what point.) Further, catch-all provisions such as "The singular shall include the plural and vice-versa", or "The present tense shall include the future tense", can be used to prevent challenges based on overly literal interpretations.
I. Use space and time savers whenever possible - Adopting statutes by reference can save a lot of time and space when drafting an ordinance. On the other hand, if the township does not have easy access to current statute books, adoption by reference can lead to confusion as no one will have access to what is actually referenced in the ordinance. Providing a section that states all references to a particular township official shall include his or her authorized designee can also be a time and space saver and allow more flexibility in the day to day operations of the township. Finally, instead of listing individual fees in separate ordinances, the township may wish to consider the adoption of a fee schedule that is adopted by reference in the main text of the ordinance. By creating a list of all fees and adopting it as a separate document, the board can amend the entire list at once without having to search through all ordinances and adopting separate amending ordinances for each one imposing a fee
J. State needed information - Who is responsible for enforcement, etc? Who is responsible for distributing and collecting applications and other forms? Who is to conduct inspections? Whose opinion must be sought before a request can be approved? These questions should be answered in the text of the ordinance.
K. Due Process and other Constitutional Protections - Regulations adopted by the town board cannot deny any person of his or her protected rights. Due process protection needs to be considered when debating enforcement mechanisms.."
Drafting an ordinance is a very difficult , time consuming and challenging task which deserves the time, professionalism and due diligence, while taking into consideration the long term outcome of the rule of law.
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