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!