DRIVE TIME?

At the October Board meeting “Driveway Regulations” was listed on the agenda. First, know that driveway permits are over-the-counter. The Clerk issues them and the applicant does not need to go before the Planning Commission and Town Board.




A story unfolded during the Board's discussion. It seems a driveway permit application came in during August after the Board meeting that month. The applicant wished to move his driveway from its current location north. Mark Ceminsky, who had resigned as road supervisor at the August Town Board meeting, weighed in. (It seemed from what Ceminsky said at the August meeting during his resignation comments that his feelings were hurt and he claimed to be “stabbed in the back.”) Ceminsky told Clerk Ranee Solis to deny the permit. He asserted that there is a fifty-foot offset for driveways re other driveways. Upon examining the Ordinances, Solis found no such offset mentioned anywhere. Ceminsky apparently didn’t think that mattered, because he insisted, “It’s how it’s always been done.”

Solis rightly determined that the Township has to have a legal basis to deny a permit and, since there was nothing in the Ordinances about this offset, she did not think the permit should be denied.  Yet Ceminsky apparently was firm on the denial being the course to take. Since Ceminsky was no longer road supervisor at this point, the clerk reached out to the Chair and Vice Chair. She was instructed to go ahead and issue the permit.

When this agenda item came up at the October meeting, both Ceminsky and Hansen objected to the Clerk’s action and the instruction she was given. Hansen went so far as to very rudely and very loudly state to the Clerk that she  “doesn’t run the Township.”

Now the Clerk is duty bound to follow the Ordinances. When, during the meeting, Hansen and Ceminsky were asked by Supervisor Barfknecht to point to the spot in the Ordinances that states the offset requirement, neither could do so. Hansen, however, argued “It IS in the Ordinances [because] we’re supposed to protect the public health, safety and welfare and this is a safety issue.”

Without any Ordinance language, how does that work? Supervisor Q decides that “xwyz” is necessary for your safety. No real rationale given why a distance should be a 50’ offset as opposed to a 40’ one or a 60’ one. Or that an offset greater than the distance to the lot line already in the Ordinances needs to be. “We’ve always done it that way” is not a reason to stand on. Where does it say that the public through the Ordinance adoption process agrees? What if a new Board Supervisor P says he/she thinks that “abc” is how it should be done? Doesn’t this leave the Citizen at the mercy of fluctuating standards at the whim of whomever is in office? Yes, the Board's authority comes from a duty to protect the health, safety and welfare of the public, but this “umbrella” does not give any Board the right to act in such an arbitrary and capricious way!

Following is what the Ordinances have regarding driveways in Ordinance 3, Ch. 3, Section 5, B:

       B.  Driveways shall meet the following requirements: (Resolution 59, 8-13-2007 (B.1.-3.)

1.    Driveways that take access on township roads shall be located a minimum of ten (10) feet from the property line or as necessary to provide adequate drainage onto the parcel the driveway serves. 

2.    Driveways that take access on County/State highways shall conform to ordinances of the County and State, as appropriate.

3.    Driveways must be located a minimum of 300 feet from the intersection of any two or more public roads.

Clearly, different Ordinance language is required if the Board wants to proceed down this path, and anything else is nonsense! Supervisors ought to know this, or I wonder what they are doing up there.

As a result, the Planning Commission was tasked with looking into the Ordinances and Chapter 169 in state regulations. I briefly scrolled through 169 and saw no reference to driveways. That's not to say that the Commission couldn't come up with some recommended language. It is of note that there are driveways along Dodd Blvd. (a County Road so the County issues driveway permits) that do not have this offset. And we not are talking about driveways that have been there "forever." Does the County, then, have little regard for your safety? I doubt it.

The road that the permit applicant lives on is Denmark Avenue which is a road a portion of whose maintenance is shared with Castle Rock Township. Apparently from what I have been told, Castle Rock does require a fifty-foot offset between driveways. Eureka citizens are not governed by Castle Rock Ordinances, however! Are we a little confused? Is this where this requirement came from? Or have Eureka road supervisors been operating without the benefit of Ordinance language? Because "it's always been done this way"?

There was also a list of drives presented in the public packet that gave a number of drives on the same side of the roadway (the Eureka side) that do not meet fifty-foot offsets. Ceminsky, perhaps surprised to see the list, judging by his comment about it, objected to this list because he said some of those listed were field approaches, not regular driveways.

It appears to me that Clerk Solis was correct in her assessment and acted to protect the Township. If the Board wants to establish an offset, they can go through the public process to insert Ordinance language to that effect. It should be noted that under the Ordinances, the Town Clerk is the Zoning Administrator. As such, the call she made is within her authority.

THE WISE MAN KNOWS WHAT HE DOES NOT KNOW -Lao Tzu

At the October Planning Commission Meeting and the Conditional Use Permit (CUP) public hearing that same evening, it was glaringly evident through the actions of one Commissioner, Al Novacek, why mandatory training for all public officials would be a great idea! Not only is it just desirable, but really necessary for Township business to be conducted in a responsible, correct manner. To my knowledge, Novacek has never taken any training. After that night, I wondered again if he has read or ever refers to the Ordinances in preparation for such events. If he does read them, his lack of understanding is evident.  That, or he just plain has a philosophical objection to them.

He has, after all, on more than one occasion as a Commissioner publicly stated that “we’d be better off without any Ordinances” and “everyone should be able to do whatever he wants to on his property.”

If part of the job of a Planning Commissioner is to uphold and follow our laws, and one doesn’t even believe in them, what is he doing up there at all?

It’s like someone continuing to attend services at the church down the street, all the while objecting to what takes place there and trying to undermine the faithful!

Of course, changes take place over time, but there are surely general principles which remain in place. For example, the importance of the Comprehensive Plan, protecting the health, safety and welfare of the public, and following proper and accepted procedures are all significant. One needs to understand what CUPs or Interim Use Permits (IUPs) actually are and why they are set up as they are. One also needs to understand the difference between legislative and quasi-judicial decisions made by Township officials and the implications thereof which are quite different from each other.

On a solar CUP discussion during the meeting itself, Novacek questioned where the Findings of Facts before him had originated. When informed that they were responses of the applicant to the Ordinance, he said he didn’t think that they should come from that source. What he fails to recognize is that in Ord 3, Ch. 4, Section 14, A, "Criteria For Granting Conditional Use Permits,” the list of 7 items he was discussing are those that the applicant has to meet. In applying for a CUP, applicants have to address each and every item on the list. To use those responses for the Finding of Facts is essentially saying that the Planning Commission agrees with the determination. Indeed, the Commission went through this list one item by one item, and a majority of four agreed on all seven criteria.

Novacek? He objected to two of the items in the Finding of Facts, saying he did not agree with them, but was still willing to recommend approval of the solar CUP. I pointed to the section of the Ordinance mentioned above and stated that all the items had to be addressed. If they could not be, the Commission and the Board could not go ahead with granting the CUP.

I also pointed out that when the Township went through the adoption of the solar ordinance (while I was Commission Chair) it was done with the understanding that it was in compliance with the Comprehensive Plan and its goal. Therefore, to say the solar array was not a proper use of the property or that it was not "reasonably related to the existing land use" was nonsensical. By adopting that Ordinance the Township is saying it IS a proper use of land within the agricultural district.

Novacek went on to raise the possibility of the house being removed and the solar array (20 kw) becoming a business. I believe he mentioned this because the homeowners can and will sell any extra energy to the electric company. However:

1. Selling excess energy is common in solar uses and the Township had no objection to this.
2. Even more to the point, our solar ordinance allows ONLY ACCESSORY solar uses. Thus, a business whose purpose was collecting and selling electricity is not allowed. I pointed out that, during the discussion of proposed ordinance language, the decision was made to not permit  primary use solar arrays as we did not want the Wright County situation in Eureka.
So, at any rate, this “possibility” was nothing more than a red herring.

So now onto the public hearing portion of the evening. Up for discussion was a CUP for a radio broadcast tower. (More basic info on this newly adopted use in a later blog post.) At one point I spoke and said that if the applicant met all the requirements (and I do mean ALL of them, Mr. Novacek!) and agreed to all related, reasonable and proportional conditions, that applicant is entitled to the CUP.

I stated that the granting of a CUP is a quasi-judicial action. I repeated that those are the issues that can go to court. The Township would have to have a really good, legally defensible reason to deny any CUP and has to state those reasons in its denial.




Once the Board adopted the ordinance language, we are saying we allow the use. It is a Conditional Use Permit because there is potential for more than usual negative impacts. (A residence, for instance, is an example of a “straight” permitted use with low negative impact in and of itself. No CUP needed.) I suggested that since this is a commercial use, the option of a condition for review on some periodic basis would probably be appropriate. This has been usual procedure.

Enter Novacek again. He held that no conditions should be required because it “just added another layer of government.” The whole idea behind CUPs is that, while allowing the use, the government recognizes that such uses can have some negative impacts that need to be lessened in the interest of the public health, safety, and welfare. This is the reason they are called Conditional Use Permits! The conditions are a protection, not over regulation.

Novacek wanted to do two motions: one for the list of criteria and another for the conditions. Chair Fredlund moved that the Commission move the application ahead to the Board for approval. His motion included both the requirements and the conditions.

Okay, now comes the vote. Four Commissioners vote yes. Novacek? Abstained! (Remind you of anyone?) I guess he didn’t want to vote against granting the use, but couldn’t bring himself to agree to the related, reasonable, and proportional conditions his colleagues came up with. So he abstains! Commissioner Wood asked him why he was abstaining. Novacek indicated because he can. (Sound familiar again?) Well, it’s true he can, but is it really fulfilling his office well?

I remind the reader that twice before in my experience, I proposed making at least two training sessions in a first three-year term mandatory for Eureka public officials. “The Basics of Planning and Zoning” offered by Governmental Training Services would be an obvious one for both Board and Commission. “Your Role as a Planning Commissioner” would be another obvious one for members of the Commission.

                             I still think it’s a good idea!