REAL--LY???

I'll admit it: my jaw dropped. Really. I was sitting at the June Planning Commission meeting near two other "ever-faithful" attendees when he said it.  The quorum that evening was made up of the three men on the Commission: Novacek, Cleminson, and Hansen. Before the group was a couple who had been trying since last fall, September, I believe, to get something done.  They had come across various stops and starts.  They were again before the Commission with their latest plan to be able to do what they wanted under the Ordinance.



During the discussion, one Commissioner made some comments I could hardly believe: "You're going to have to force this issue," he told the couple. "If you have split attorneys and a split Board in a sense...sometimes Fear runs the show." [Really? A Planning Commissioner who opines publicly that the Board must be afraid (at least sometimes) to do the right thing, to grant citizens what is theirs by law?  If I were on the Board, I would be deeply offended!] 
He went on, "You're going have to push it to make it happen.  I don't know how else to say that. My suggestion is force the issue, make it happen, have something to back up your stand before you get there (the upcoming Board meeting).  That's the Board's job- to make it happen for you, so don't feel bad about forcing the issue."

Gee, I always thought the Board's job was to enforce the Ordinances.  If one is entitled to receive something under the Ordinances and meets all the requirements, not only does the Board give it to him, they can't NOT give it to him!  FEAR has nothing whatever to do with it!  Enforcing the law does.  How does a Commissioner "help" a member of the public by stating such advice? Yes, an applicant should "have something to back up his stand," but to prove his point, not to instill fear in the elected officials.  Really.

It REALLY doesn't make much difference which Commissioner said it (Al Novacek), as the other two didn't contradict him in his assertion that "Fear sometimes runs the show." In fact, Hansen stated that Al's suggestion was " a good" one.  Cleminson had no comment that I remember, jotted down at the time, or can now discern from the disc recording..  Are we (the audience and the Township) to take this as the other two Commissioners agree that "Fear runs the show?"  That a majority of the current Planning Commission sees no problem with advising applicants thus? I wouldn't know what else to think.  As a former, respected Board Chair once said, "Silence is acquiescence."  I will tell you that this "outspoken" Commissioner has publicly made several statements before along the lines of his not liking ordinances, thinking Eureka would be better off without (any) ordinances, and that people should get to do "whatever they want" on their land.  Why would a Board appoint such a person as your Planning Commissioner? Planning Commissioners have an important duty working with and within the Ordinances.  Those laws have been passed properly, by public procedure, remember. Is this what we are getting for our tax dollars? Is this the best we can do?  Eureka Ordinances, Ordinance @, Chapter 3, pp 31-37  Note especially Section 6.


The one thing where I agreed with Commissioner Hansen was when he stated that Board liaison Behrendt's  suggestion of conferring with the BUILDING OFFICIAL as to what makes an addition part of the same building as a residence was a "good" suggestion. Without going into all the details, since a home occupation must be conducted within a residence under Eureka's laws, it would seem logical that the Building Inspector is best equipped to address this Code issue. Why a Planning Commission wouldn't understand this on their own, however, I can't figure out!  Really.


Giving what credit where credit is due, Hansen was willing to take the Board liaison's informed advice on this matter, even though, in my opinion, he seemed "unclear" as to why he should do so on an earlier matter at this same meeting.

I, for one, expect a lot more from public officials.  A certain level of professionalism for starters. Barfknecht and Jennings certainly provide that, I am happy to say.
As Hansen stated when he started the meeting: "The Commission is an information-gathering body.  We assist citizens in their application processes, answer any questions they might have, and prepare them for the Board meeting."  That all sounds great, but where does advising applicants that they "have to push...force" an issue because the "show" sometimes runs on "fear" come in? Is this "professional" advice?  Is this really what you expect to hear when you come before the Commission?  Eureka deserves more.


If you are a history buff (no one alive could be of that "certain age"), you might recognize this next picture as
the Virginia reel.

 

But maybe I should have made it the two-step. I do know my mind was reeling....

DOES IT MEASURE UP?

I can still hear the words in my head.  I was at a Government Training Services session, maybe "Beyond the Basics of Planning and Zoning," or the "Advanced" edition.  The presenter said and then repeated: "Variances are all about measurement.  Always remember that."

Variances came up recently on a matter that had been in the works for some months, much to the frustration of the resident citizens/applicants. The most important point to glean from the episode is that one cannot be granted a use variance.  Think about it for just a minute.  To do so would be, in effect, spot zoning, which is a big "no-no." If one could be granted use variances, what would be the point of having a land use ordinance?  None, because anything would go. Minnesota does not allow such "variances."

Case law of a few years ago has resulted in legislation changing the standard from "undue hardship" to "practical difficulties," which is an easier one to meet, thus allowing municipalities more flexibility.  (And, yes, contrary to a uncontested statement made by a recent Board Chair, Eureka IS a municipality!!  Sheesh.)  The undue hardship standard mentioned such things as "unique to the property," "not caused by the property owner," and economic issues alone as not constituting an undue hardship.  It should be noted that as long as the landowner has a "reasonable use" of his property, no taking can exist.  Very simple uses can be considered reasonable: a garden, for example.

"Practical difficulties" can be met more easily, although there is still reference to "unique" and "not caused by."  Perhaps a relaxing of setbacks on a substandard but buildable lot of record ("grandfathered" lot), maybe five feet all around might be granted.  This would allow the property owner a larger house than what he could otherwise build on a small lot, yet could be viewed as not negatively affecting adjacent property owners, being only five feet in difference.  A public hearing must be held, thus allowing those neighbors to weigh in.  The Board, acting as the Board of Adjustments and Appeals, makes the decision, supported by a Finding of Facts.  The Board can impose reasonable and related conditions if it considers these desirable.

From our Ordinances: Ordinance 2, Chapter 2, Section 1,  C. Variances. Grant variances or relief from literal ordinance requirements in accordance with the provisions of Ordinance 3, Chapter 4, Section 16. To hear requests for variances from the literal provisions of the Ordinance in instances where their strict
enforcement would cause practical difficulties, and to grant such variances only when it is demonstrated that such actions will be keeping with the spirit and intent of the Ordinance. The Board of
Adjustments and Appeals may not permit as a variance any use that is not permitted under the Ordinance for property in the zone where the affected person’s land is located. The Board of
Adjustments and Appeals may permit as a variance the temporary use of a one family dwelling as a two family dwelling. The Board of Adjustments and Appeals may impose conditions in
the granting of variances to ensure compliance and to protect adjacent properties. Conditions imposed must be directly related to and must bear a rough proportionality to the impact created by
the variance. (Resolution 59, 8-13-2007), (Ordinance 2011-04)  Italics added.

For more detail see pages 86-89 in Eureka Ordinance: Variances

Consider this:
The Minnesota Association of Townships spring courses were held in March; the summer courses are being held now.  No one on the Board has requested funds to attend and no one has reported on these sessions. While it is true that there is a current member who has faithfully attended such sessions in the past and brought back information to the Board, many have not or haven't other than perhaps once or twice, a few years ago.  "Learn something new every day" is a good motto to live by. "Lifelong learner" is a title we should all be proud to bear.

 What do you think?

"MINORITY" REPORT(S), BUT NO TOM CRUISE!

Agritourism Task Force Chair Cory Behrendt reported to the Board at its June meeting on the Task Force's "end product," as far as it went.

The Task Force had had its final meeting and voted on their draft Ordinance language to submit to the Board, although it wasn't entirely agreed upon by any means.  There was a vote of 4 to 2, with noted exception by two members, Fritz Frana and Chair Behrendt.



The Ordinance provides for members of any Special Committee (or "Task Force") to submit a "minority report," which Yours Truly thinks would be the responsible way to take if one had serious reservations about where the majority of the group was headed.  Apparently Behrendt and Frana had strong reservations as they submitted such a report.  (This has happened before: with the Citizens Advisory Committee a few years ago, for example, two members submitted a minority report objecting to an action with which they disagreed that had taken place in their absence .)

Others on the Agritourism Task Force became aware of this minority report and, at the Board meeting, expressed a desire to submit their own reports, one five pages in length according to its author, Mark Parranto.  Atina Diffley stated that she would like to submit her own individual views to the Board as well, one being that perhaps the Board didn't want/need to have an Ordinance at all on this use. The Board then invited all Task Force members, including Butch Hansen and Phil Cleminson, to submit what they might wish the Board to consider.


In my opinion, this parting of the ways just shows what many have said all along-- that this topic is rather complex and that people approach it from very different viewpoints. There is no simple answer.

One item that concerned some was that the Ordinance language suggested relied heavily on a complaint being filed in order that an individual property owner operating at a certain level, but without a permit, be made compliant. This would be at a level of intensity and scope that, under the Performance Standards, would rise to needing an Interim Use Permit (IUP). Other Interim Use Permits and Conditional Use Permits are typically required at any level of those uses, e.g., churches. Since the committee, working from community feedback at the December Open House, was interested in allowing lower-intensity agritourism activity as a use by right, this begged the question of how does the Township get people beyond that level of use to come in and apply for the necessary IUP when the time is right?  Because of limited resources, the Township functions on complaint-based enforcement of its Ordinances. Some citizens would be diligent and apply for the necessary permit; others perhaps not. It is important to note that IUPs are a tool whereby the Township can impose reasonable and related conditions on a particular use in order to mitigate any negative impacts on surrounding properties.  This actually protects all involved, including the permit holder. (Some, however, have argued that requiring an IUP is "restrictive," rather than being "protective," an opinion I don't agree with.)

Many have expressed discontent with the complaint process and how it has been handled by certain Boards. Many have expressed concern about the Ordinance being applied evenly to all, not to just a few. To add another use when these concerns are seen as not being satisfactorily dealt with might be considered to be problematic.

POINTS TO PONDER:
1) There are still no Task Force meeting minutes or materials posted on the Township website for you to read.
2) This may not happen soon as the website is still being updated and there is again no Town Clerk. (The Board dismissed the recent hire, and Linda Wilson is about "out of here," having stayed around much longer than she planned.)
3) It would be beneficial for citizens to have another opportunity for receiving information and asking questions before a public hearing would be held. Another Open House could accomplish that. The Task Force members would be the likely people to conduct such a gathering, at least as far as their discussions have covered the topic. Citizens could weigh in on how the Task Force has addressed their concerns expressed at the first Open House. Ideally, a public hearing is not the time to be first finding out the details of a proposed law.

   

                                           STAY TUNED!   

MISSION CONTROL---DUST, THAT IS

It appears that the "by Memorial Day" target was unrealistic.  As was mentioned at the Board meeting, there have been some product availability problems.  These are problems that even the County is experiencing as well.

Look to see dust control around June 10th, which is certainly better than the mid-July point that might have been!!!  Supervisor Budenski to be credited.

Those of us on gravel roads should be breathing easier soon!