AGRITOURISM ORDINANCE PUBLIC HEARING

              THE PUBLIC HEARING FOR AGRITOURISM SET BY CHAIR HANSEN FOR TUESDAY, FEBRUARY 3, 2015, HAS BEEN CANCELED. AGRITOURISM ORDINANCE DRAFT LANGUAGE WILL BE DISCUSSED AT THE REGULAR FEBRUARY PLANNING COMMISSION MEETING.

                                                PLANNING COMMNISSION MEETING
                                                                FEBRUARY 2, 2015                                                  

NAH NU NAH NU...NAH NU NAH NU....

Did I enter "The Twilight Zone?"  Had I gone beyond "The Outer Limits?" Maybe I was seeing an exhibit at "Ripley's Believe It Or Not?"  That was the surreal atmosphere that I and a few others experienced at the Special Meeting of the Eureka Planning Commission on January 20th.


First, a little background to set this up:

At its December meeting, the Board had directed the Commission to come up with a procedure and an updated application form for the Water Ordinance.  The VRWJPO ceded its authority for the implementation of the Ordinance over to Eureka at the Township's request.  (You might remember that some have repeatedly expressed what many would consider sound reasoning as to why this should not happen. See previous blog posts.) The Board had set the date of March 1st to start enforcing the law.

Because of this, Board Chair Kenny Miller emphasized the need for a timely drawing up of these items to Commission Chair Butch Hansen and suggested that perhaps a special meeting in the month of December was in order.  Hansen indicated that it would be done at the PC's January meeting. Miller said, "Are you sure you can get this done at one meeting so the Board can review it at its January meeting?"  Hansen's reply: "No problem."

HOWEVER, when the January meeting of the Commission was held, Commissioner Hansen chaired a meeting at which the main order of business discussed (until nearly 11:00 p.m.!) was that Perennial Favorite, the proposed Agritourism Ordinance!  The VRWJPO item was on the agenda, but Chair Hansen never got that far, nor did he move it up on the agenda or even indicate to the rest of the Commission the Board's urgency on this matter that had been expressed to him earlier. Hence, no procedure, no updated form. So much for "No problem." So the Board's priorities were left unaddressed. Further, the Commission's work on the Agritourism Ordinance, even at the late hour of nearly 11:00 was still not completed.

At the Board's January meeting, upon hearing of the Commission's failure to fulfill its directive, the Board directed the Commission to have a January Special Meeting on the Water Ordinance (an expenditure of Township $$$$ that could/should have been avoided), and further, specified ONLY the Water Ordinance be the subject of this Special Meeting.. The Board was now left with asking for the procedure and the form by its February meeting.  This does not allow much time for any additional changes and finalization, as that is only just before the start date of the Township's enforcement of this major piece of legislation.

During the January Board meeting it was also made clear when the subject of having another Special Meeting on Agritourism was brought up, I believe by Supervisor Ceminsky,that the Commission was to engage in any further discussion of the Agritourism draft language at their regular February meeting, which was time enough, and not at a Special Meeting. When that language was deemed complete by the Commission, it was directed to send the final draft language for the Agritourism Ordinance back to the Board for its review before any public hearing should be scheduled.

Supervisor Ceminsky and Commissioner Novacek (who was filling in as liaison for an absent Hansen) were directed to communicate all this to Chair Hansen.  They indicated they would.

A Special Meeting of the Commission was scheduled for January 20th.  The Agenda?  The VRWJPO permit process and the Agritourism Ordinance! Hmmmmmmmmm......... In addition, the meeting was scheduled for a time that Commissioner Jennings was not available.  She is very knowledgable about the Vermillion River Watershed and it would have been valuable for the Township had she been able to participate in the discussion.


When it came to the Agritourism issue, the Commission made a number of (what I consider unfortunate and ill-reasoned) changes which I will discuss later. Chair Hansen then went on to say that he wanted to schedule a public hearing on Agritourism!

A member of the audience raised his hand and said that the Board had indicated at their meeting that they wanted to see the final draft language before a public hearing.  Supervisor Ceminsky, as Board liaison, was asked about this.  His response was along the lines of,  "I don't remember that, but this topic has been around a long time and it should get moved forward."

ENTER THE TWILIGHT ZONE!!!!!  Supervisor Ceminsky had been tasked with relaying the Board's directive to Chair Hansen (before the special meeting, I might point out) and now as the Board liaison at that meeting he was actually urging the Commission to move ahead with the hearing? That sounded to me like a Supervisor becoming a Board of One!

I then raised my hand and stated that the first audience member was totally correct even if Supervisor Ceminsky seemed to be having a problem remembering! Well, then Commissioner Al Novacek raised his hand and said he had been the Commission liaison at the Board meeting and he did not remember this directive from the Board either!

The only thing to say was, "Well, then you have a bad memory, too!"

The first audience member then said to Ceminsky, "Mark, don't you remember the Board discussion on this?"  Ceminsky's response was, "I don't remember a motion on this."  (Emphasis mine.) Audience Member No. 1 replied, "Not a motion, but the discussion!  Don't you remember the discussion?" I don't recall that Mr. Ceminsky answered that question.

 Both Ceminsky and Novacek had agreed that they would inform Hansen, but were now publicly professing that they could not even remember their task or perhaps questioning that they even had a task! Citizens who had also been present at the Board meeting and could speak to the matter were simply ignored. So, rather than having a Commission that follows Board direction,or a liaison that communicates the directive properly, do we have a "loose cannon" or two instead? The public hearing was scheduled for February 3rd.  Check to see if it is posted on the website or is properly published as required in the two official newspapers of the Township.

And if you see any three-eyed aliens running around Eureka, ask them if they know who is running the Township!  Tell them Rod Serling and I would like to know!

IS THE AGRITOURISM CLOCK TICKING?

     The monthly meeting of the Town Board was held on January 12, 2015. The following is an update                       on agritourism, IT and the VRWJPO ordinance.                                                          

     Vermillion River Joint Powers Organization Ordinance (VRWJPO): The Township will start administrating the ordinance on March 1. The attorney stated that the Township needs to adopt the summary ordinance as prepared. The Ordinance was adopted and a summary was to be prepared for distribution. The Planning Commission was tasked with reviewing the Watershed Management Relations summary ordinance for any changes to procedures and creating an application form. The attorney stated the summary needs to be adopted before it can be published by the Town Clerk. A motion was made by Miller and seconded by Ceminsky to adopt the summary. The motion passed.
     Supervisor Miller stated to Commissioner Novacek, the Planning Commission liaison, that he was especially concerned regarding the procedures for implementation of the Water Resources Management Ordinance and the application stating the March deadline.  He suggested a special meeting be held by the Planning Commission. Supervisor Miller stated that the Board had directed Chair Hansen to present the VRWJPO deadline as a priority for discussion. Both Commissioners Jennings and Novacek agreed that Mr. Hansen did not convey the message. Commissioner Jennings stated that a draft copy of the December Town Board meeting minutes had not been given to the Commission for their January meeting.
     Supervisor Ceminsky made a motion to direct the Planning Commission to call a special meeting to address the Watershed Ordinance. Chair Miller seconded the motion with an amendment to discuss the Watershed Ordinance and ONLY the Watershed Ordinance. Supervisor Ceminsky accepted the amendment.  The motion passed. The intent was to have a "polished" instrument on the Ordinance and a completed "ready to go" application form to be presented to the Board in February. Supervisor Ceminsky agreed to speak with Chair Hansen regarding the special meeting. Supervisor Ceminsky felt that there should also be a special meeting for agritourism. He wanted to move it forward to get it "off the plate."  He made a motion to allow the Planning Commission to hold another special meeting.  The Board did not agree with this motion and it died. Chair Miller felt the agritourism discussion should take place at the Planning Commission
February meeting.
                                                                             
     FAST FORWARD: Supervisor Ceminsky agreed to talk with Chair Hansen regarding the special meeting for discussion of the VRWJPO ONLY! Chair Hansen, without consulting with the Board, took it upon himself to schedule a special meeting on January 20, 2015 at 7:00 p.m., to include BOTH VRWJPO and agritourism even though the Board directed otherwise. He scheduled the special meeting on a date Commissioner Jennings is NOT available. When the public hearing for Terri Petter was scheduled, it was done around Commissioner Hansen's schedule so he could be present. Where was the disconnect between Ceminsky and Hansen (or was there one)?MAY I ASK WHY? Agritourism is a very complicated issue with the potential of affecting all land owners and future zoning. Who is running this Township? Note: Supervisor Ceminsky, Commissioners Hansen and Novacek's terms end in March. Is there a sense of urgency?                                                       


     IT UPDATE: Supervisor Behrendt stated the web site is taking more time than expected; therefore, the Clerk and Treasurer emails will be set up to be consistent with the web site.The Board will then discuss individual emails for Commissioners and Board members. He expects the web site to be in production by next month. There will then be training for the Clerk and Deputy Clerk.
     The Treasurer requested the purchase of a new lap top computer. Supervisor Behrendt offered to donate
a lap top that would be of a higher quality than the lap top the Treasurer would be authorized to purchase. Declining the offer, Supervisor Miller suggested the Board purchase a new lap top computer.  This purchase was approved. Thank you Supervisor Behrendt for once again trying to save the Township money.

     AGRITOURISM: Commissioner Novacek reported to the Town Board on the Commission's discussion of agritourism at their January meeting. He stated that there were three significant issues that prevented their discussion from being sent on to the Board. He stated that hopefully the language could be addressed at the February Planning Commission meeting.
     At the AUGUST Town Board meeting Supervisor Behrendt expressed concerns regarding allowing agritourism as a use can have different implications in different areas. Chair Hansen attended this meeting. Supervisor Behrendt indicated that the Township has had problems with past issues and to come out and say "it is allowed" might be a form of an ordinance zoning change. Attorney Lemmons stated that he had concerns regarding making agritourism a permitted use because of all the potential uses. If agritourism is allowed, he felt an IUP would be MUCH better. Mr. Lemmons stated the same at the January Planning Commission meeting. WHY DOES THE ATTORNEY'S ADVICE CONTINUE TO BE IGNORED?
   

     Suprvisor Behrendt stated that he would like clarification of what the expectations are regarding the Planning Commission's further discussion of Agritourism at their February meeting. The Planning Commission has been asked to submit their ordinance draft language to the Board for review and discussion of appropriate language PRIOR to setting a Public Hearing.
                                                                 
                                                                         STAY TUNED!

   

IS THERE WISDOM IN SEEKING LEGAL ADVICE AND THEN IGNORING IT?

      At the January 5, 2015, Planning Commission meeting, the Planning Commission members continued their discussion of the proposed Agritourism ordinance language. At the December meeting the draft ordinance language was reviewed and highlighted portions were submitted to the Township attorney, Chad  Lemmons, for review prior to the next meeting. Chair Hansen requested the Township attorney be present at the January meeting to answer questions of concern regarding further agritourism discussion.  Keep in mind, as addressed in previous blogs and stated on the CD copies of Planning Commission and Town Board meetings, attorney Lemmons advised that ALL agritourism have an Interim Use Permit allowing the Township to apply conditions which would address individual applications. I believe the recommendation from Attorney Lemmons was quite valid and addressed the complexity of  the implementation and enforcement of agritourism operations.

     As I followed the discussion, it became quite apparent that the attorney's recommendation to utilize Interim Use Permits (IUP) rather than permitted uses was being ignored. A few members of the Commission were considering the concept of allowing permitted uses. This concept came from the draft report submitted by the Task Force for Attorney review. Once any of the thresholds given were crossed, an IUP would be required. Commissioner Novacek stated he had done some research and suggested that the Township's "large gathering ordinance" (Outdoor Assembly Ordinance) would be a very good way of handling most of his concerns due to his research. He suggested many line items for discussion could be eliminated. In response to his suggestion,Commissioner Barfknecht asked Commissioner Novacek what research he had done and what/who were his sources.  He stated he wanted to keep the sources confidential! Commissioner Jennings made a motion to review the highlighted points and allow the attorney to respond to their questions. Commissioner Barfknecht seconded the motion and the motion carried.

     Addressing the language of preventing/minimizing when the goal is to take into consideration the effect on neighboring properties: A motion was made by Commissioner Novacek and seconded by Chair Hansen to eliminate the word prevent from the language.  It seemed to me that Novacek's concern was that leaving in the language "prevent" would be too restrictive and have a negative effect. Attorney Lemmons reminded the Commission that one of the purposes of passing this ordinance is to take into account the effect on neighboring properties and the obligation is not to prevent, but to use as a guideline. An audience member made the comment that just allowing "minimize", in certain circumstances, might not be restrictive enough. Commissioners Barfknechet, Cleminson and Jennings voted nay and the motion failed. The language "prevent and minimize" were included in the language.

     Recommendation by the Township Attorney: Allowing agritourism as a Conditional Use or Interim Use (attorney Lemmon's preference is Interim Use for valid reasons he previously offered) rather than a permitted use, allows the Town Board and the Planning Commission to approve each use with conditions. He stated that if it is a permitted use, there is no control whatsoever. Chair Hansen asked that if everything is under an IUP what is the purpose of thresholds. Attorney Lemmons stated that the thresholds will help to craft the IUP. He also stated that whether the use is an IUP or CUP (he stated that he recommended an IUP) there still must be standards.  He agreed that thresholds were different than standards.
The attorney stated that if permitted uses were allowed and not defined, there would be "a real problem." Chair Hansen continued to address permitted uses ignoring the attorney's IUP recommendation. My question: Why do we pay an attorney for sound, defensible advice and then ignore it?

     Continued discussion of allowing permitted uses: The attorney stated that if the Township wants to keep certain uses under agritourism as permitted uses, the Commission will have to define and list under Chapter 4 for clarification, what agritourism uses will be allowed as permitted uses as well as indicating exclusions. Allowed uses must be on the permitted user's property. It was agreed that the primary use of any property shall be to conduct agricultural operations. Note: At no time during the meeting did the Commission address the attorney's recommendation to list uses.

     Square Footage allowed for non-agricultural retail floor space: Keep this in mind. This space can be used for shirts, sunglasses, hats, coats, boots, etc. only to name a few. Are the stated uses what we want to see in the agricultural community? (my comment). The Task Force, over many meetings of continued discussion, arrived at an allowed square footage of 100 square feet. Chair Hansen did not believe that 100 square feet is enough.  He would like to see 200 square feet. At what point does Commissioner Hansen (who was on the Task Force with Commissioner Cleminson) recognize the recommendation of square footage by the Task Force? At the DECEMBER meeting Commissioner Novacek stated that he thought 10,000 square feet would be adequate. Commissioners Hansen, Jennings and Cleminson stated "that is a
Wal-mart!" Commissioner Jennings stated that Eureka is zoned agricultural. Commissioner Novacek did not see the point and stated "that's arbitrary." Is it Commissioner Novacek's intent to be "the gift that keeps on giving?"
          Arbitrary: subject to individual will or judgement without restrictions; contingent solely upon one's discretion.
          Anarchy: political and social disorder due to the absence of governmental control.
                                        Dictionary.reference.com
     The 100 square feet would not only allow floor space but wall space also.
A motion was made by Commissioner Novacek and seconded to raise the direct market NON- agricultural retail floor space to 200 square feet. This square footage is also arbitrary as reasons to ignore the Task Force recommendation  of 100 Square feet were not offered. Commissioners Jennings and Barfknecht voted no. Commissioners Cleminson, Hansen and Novacek voted yes.

     Adverse Effect: Commissioner Novacek questioned having the language "adverse effect" included in the ordinance language. The attorney explained that "adverse effect" is a "term of art" used in ordinance language. He went on to explain the benefits to the Township and how a Court might look at the language. A motion was made to keep the language based on the attorney's advice and explanation. Commissioners Jennings, Cleminson, Barfknecht and Hansen voted yes and Commissioner Novacek voted no. Novacek once again ignored the attorney's advice.

     Discussion of the enforcement of the number of cars and visits of people daily, on a weekly basis: The attorney stated that the Township is here to create standards by which the Town is to operate. There should be a reason numbers are determined and used as a standard. The question is what numbers
make sense and how will the numbers be enforced. When talking about permitted uses, the Township needs to have some kind of standards or the situation may be nebulous. Attorney Lemmons stated the language that was proposed was quite standard.  He suggested that he might add no more than 30 cars per day parked on the property if served by a dirt road and 75 cars parked on a property if served by a paved road. He felt that this would be enforceable.

I suggest the Town Board and Planning Commission members research thoroughly information regarding Interim Use Permits before proposing an agritourism ordinance for Eureka Township that is zoned agricultural without commercial zoning. I agree that the recommendation of the attorney to not allow permitted agritourism uses and allow Interim Uses only is a sound recommendation protecting the rights of all citizens. (Information taken from an audio recording and a CD copy can be obtained via the Township Clerk).

     I googled information regarding Interim Use Permits and found an article titled  Interim Use Permits Can Be A Great Tool For Towns written by a Minnesota Association Township Attorney
.  The key points are as follows:
    1) A Conditional Use Permit (CUP)remains in effect so long as the owner is meeting the conditions of the permit and it remains a conforming use. Any municipality that puts an expiration date on a CUP will lose a legal challenge to that provision.

   2) Towns and cities have the authority to allow interim uses under Minnesota Statute 462.3597 (see below). By not using interim use permits, he believes that towns are missing out on a great tool in land use planning and management.

   3) He believes an interim use permit is useful where a proposed use fits within the current zoning plan but will likely not fit with the expected growth of a town. A town can issue an interim use permit with conditions that match those of a CUP. In short, interim use permits are ideal for situations where a town wants to issue a CUP with a time limit.

   4) A conservative application would be to designate interim uses as activities that are NOT neighbor-friendly, such as gravel mining, in areas that have any likelihood of growth.

   5) The first step for towns wanting to issue interim use permits is to adopt an ordinance designating what type of uses are interim. He believes coordinating an additional land use ordinance into an existing system can be complex. It is even more complex when it is something that does not have CLEARLY DEFINED LIMITS. For this reason he recommends enlisting your town attorney when drafting an interim use ordinance that will work with your existing zoning scheme.

     The Township is a member of the Minnesota Association of Townships and has access to MAT information and resources on their web site or MAT attorney contact.

              YES, I BELIEVE THERE IS WISDOM IN SEEKING LEGAL ADVICE AND NOT
IGNORING IT BECAUSE OF PERSONAL AGENDAS OR OTHER REASONS! 
     Remember, this only became an issue because one property owner in the community requested a text amendment to allow her/him to carry on an activity he/she is already engaged in. The Township must consider future growth in relationship to residential zoning.

For your reference, the following is what is stated in the statute. 

MINNESOTA STATUTES 2014
462.3597
Copyright © 2014 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.
462.3597 INTERIM USES.
Subdivision 1. Definition. An "interim use" is a temporary use of property until a particular date, until the occurrence of a particular event, or until zoning regulations no longer permit it.
Subd. 2. Authority. Zoning regulations may permit the governing body to allow interim uses. The regulations may set conditions on interim uses. The governing body may grant permission for an interim use of property if:
(1) the use conforms to the zoning regulations;
(2) the date or event that will terminate the use can be identified with certainty;
(3) permission of the use will not impose additional costs on the public if it is necessary for the public to take the property in the future; and
(4) the user agrees to any conditions that the governing body deems appropriate for permission of the use.
Any interim use may be terminated by a change in zoning regulations.
Subd. 3. Public hearings. Public hearings on the granting of interim use permits shall be held in the manner provided in section 462.357, subdivision 3.
History: 1989 c 200 s 2







   

   

   

YOU HAD TO BE THERE...

...at the December Planning Commission Meeting.  What was said was hard for me to believe, but there it was!

You remember Agritourism, right? You remember that it started as an individual's proposed text amendment and was "taken over" by the Board under Pete Storlie's chairmanship. Two separate public hearings were held. Many concerns were expressed. The proposed text amendments offered little in language and perhaps even less in development of concept, in my opinion. Ultimately, a task force was appointed by the Board to look into it further.

The task force, at any rate, met for months and hours and hours and hours. You might remember that there were also two open houses for citizens to ask questions and offer input by means of questionnaires and verbal comment. These open houses were not a given; people had to press for the opportunity for those of you who came.  It makes sense to me that community input should be sought and that people should be given multiple ways to give their feedback.


This feedback should be considered carefully and thoroughly by the Commission and the Board. After all, they represent all of you! The Township Attorney was also asked to take the task force language and come up with the ordinance. So we have spent much time, effort and funds on this topic.


Now, to the December Commission meeting. When the four Commissioners (Commissioner Barfknecht was absent) were starting to discuss the proposed ordinance language, Commissioner Novacek objected to it. He used the example of the provision for up to 100 sq. ft. of retail space to be allowed for sale of non-ag items before an Interim Use Permit (IUP) would be required.  (I remind you that the Attorney actually advised that all agritourism have an IUP so that the Township could better control this use through conditions specific to each instance.  His language did not reflect this as that is not what the Board asked him to do.)

Novacek stated that he thought that 10,000 sq. ft. would be better!!!  The other three Commissioners, which included two task force members, Hansen and Cleminson, responded, "That's a Wal-Mart!"  Novacek indicated that he didn't see their point.  Commissioner Jennings said, "We are zoned ag!" Novacek's response?  "That's arbitrary."

I seem to remember a township-wide vote back in the early '80s whereby the citizenry determined that it wanted to keep the one house per quarter-quarter zoning that would allow agriculture.  That's not arbitrary.

Zoning started, if I remember training sessions correctly, back in the 1920s. Before that pollution-spewing factories could be right next to residences.  It was better for people's quality of life if these uses were separated. That's what government's duty to protect the health, safety, and welfare of its citizens is about.






Novacek went on to say that he thought everyone should be "able to live the way he wants to."  I don't think he has followed this to its logical conclusion. If Person A wants to live in Manner X, and say Manner X is owning a big box store alongside his house, what about Person B's  ability to live as he wants to if Manner X is objectionable to him and he lives right next to Person A? What if Novacek is Person B? What might he say then?  You see where it goes.  Our community has self-determined that it is ag.  That means certain uses do not fit in the zone, although we do allow certain non-ag uses such as churches and schools under Conditional Use Permits. But that was also done through public input and ordinance adoption.

At any rate, Commissioner Novacek said he was going to do his "own research" on the topics to be regulated by the Agritourism Ordinance and bring it to the January meeting coming up this Monday, the 5th. I sincerely hope that the other Commissioners remember all that has gone before and all the discussion it took for the task force to get to its conclusion.  Even the task force, just the six of them, had a hard time agreeing.  I don't think it should all come down to a Committee of One, do you?