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