POWER OUTAGE? HOW'S YOUR CONNECTION??

As explained by Attorney Chad Lemmons in a previous Eureka newsletter, Township 
officials have both legislative and quasi-judicial powers. Which power they are exercising at a given time such as at a public hearing determines the courses/actions open to them.

To "hit you over the head" with this, a Text Amendment to the Ordinances regarding a particular proposed land use is a legislative matter. Because the Township has zoning authority and can decide its own land use (if accepted as consistent with the Metropolitan Council's systems statements), it has much greater discretion and leeway in whether to adopt such an amendment or change of use or not.

A public hearing must be held. The statutory requirement for notification in the case of a Text Amendment is publication of the hearing topic and date in Eureka's official newspapers. A reference could also be made in the Town calendar or perhaps on the website, but what is required is only the newspaper publication under "Public Notices." This is the reason that letters are not sent to each landowner in the Township. (More on that later.)



If, following the public hearing and the Planning Commission's recommendation, the Board decides not to adopt the proposed use and has a rationale underlying that decision, the courts are likely to uphold this legislative decision were it to be challenged. The same would hold if the Board did adopt the land use. Because of this, whether you are in favor of or opposed to the proposed land use change, the Text Amendment public hearing is the time to make that opinion known. Presumably, if enough citizens weighed in one way or the other, the Board could vote accordingly, although it would not be bound by that. (Elections have consequences, as they say.)

However, once such a use in a Text Amendment is adopted and made lawful, it is then an allowed use, even though conditions may apply. An application for a Conditional Use Permit (CUP) or Interim Use Permit (IUP), both of which involve the placing of conditions upon the use, triggers the Township's quasi-judicial authority. Once adopted under a Text Amendment, a land use (including conditional and interim uses) is (and, really, must be) permitted as long as the applicant meets all requirements. The Township has already determined through its Ordinances that it will allow the use. It may have also seen fit to make it a use that can have conditions placed on it, rather than a "straight" permitted use, but it is allowed. (An example of a "straight" permitted use is a single family dwelling in the ag district.)

Since judges do not make new laws, but work with the existing laws, this means the Township Board has limited action it can take regarding these quasi-judicial powers.

In the case of a use such as an IUP or CUP, as long as an applicant agrees to all reasonable and related conditions the Board deems advisable and appropriate, that applicant is entitled to the permit. If an applicant were denied such a permit even though he is willing to abide by such conditions, this would leave the Township open to lawsuit.

Therefore, at a public hearing on a CUP or IUP application, to expect the Board to deny a CUP or IUP when the applicant agrees to conditions is unrealistic. Such comments as "Our neighborhood is against this IUP and wants the Board to deny it" or "Let's see how the IUP the Board just granted plays out before issuing another one like it" do not hold water. A denial of such permits even when the applicant agrees to conditions would likely be viewed as "arbitrary and capricious" and be overturned by the courts.

What a citizen can do at a CUP or IUP public hearing is to suggest conditions he would like the Commission/Board to consider. These conditions are seen as ways to mitigate any negative impacts of such uses. This is the reason that, in addition to the publication of the public hearing in the newspapers, letters are sent to those landowners within 1,000 feet of the proposed IUP or CUP use. Since these are the people most likely to be affected by a negative impact such as increased traffic, under the Ordinances the Township wants to be sure that these neighbors have the opportunity to have input. However, just simply whether citizens/neighbors are for or against a use to be permitted is not sufficient to enter into the decision-making.

To have all the neighbors show up and say they are for or against a CUP or an IUP is not the point. To have neighbors show up and say that they are not happy about impacts such as noise or traffic and would like to see appropriate screening and turn lanes installed is another thing altogether. Those neighbors must recognize that the use is allowable, but can be made more palatable if buffered properly.

The very important thing here is that the Township generally has only one guaranteed time to place these conditions. That time is when it grants the permit. So if officials think of a "good" condition later, the neighbors may be out of luck. That is why it is advisable to come to such hearings to protect your interests.
Additional conditions can be placed at a date after the Board grants the permit, but only if the applicants agree to the additional conditions, which is probably unlikely.
If a CUP or IUP should happen to require an amendment down the road (see Ordinances), that does give the Township another opportunity to place any further conditions thought necessary, but that event may never take place.

An idea that has been discussed at recent Commission and Board meetings is to place the Text Amendment notification on the Annual Meeting agenda for citizen input. The question has been asked a number of times at other hearings, "If this Text Amendment affects the entire Township, why isn't a letter sent out to all landowners in the Township?" The answer as seen above is the statutes do not require that. However, could Eureka decide to adopt that action in addition to the statutory requirement? If so, would the applicant or the Township pay for the additional expense?

The Board is holding a Special Meeting on Thursday, February 4th, at which, among other things, the Annual Meeting agenda will be prepared.



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