WATCH OUT FOR YOUR RIGHTS..DON'T LET THEM BECOME "WRONGS!"

  

Here's an interesting glimpse into your Township officials...

For the last couple of Board meetings an agenda item regarding "number of complaints" has been on the menu, so to speak.  The item had been tabled to another meeting at least once due to time constraints.

At the last Board meeting, Supervisor Steve Madden acknowledged this as "his" item; he had requested that it be placed it on the agenda.  It turns out that the Supervisor who has publicly stated that Eureka public officials, both in general and even specifically, have violated the Constitution of the United States, no less, apparently thought it would be a "Good Idea" for the Township to limit the number of complaints that could be made by citizens.

Irony of ironies!  Supervisor Cory Behrendt stepped up to state to Mr. Madden, "I don't think you can do that.  I believe that would be unconstitutional!"  Attorney Chad Lemmons hastened to clarify that the Township cannot do such a thing.  If the same complaint were submitted after its already having been dealt with, the Township could reply, he said, by stating that no further action would be taken.

Of course, I would put forward that a perhaps similar but still different complaint on the same property (maybe different dates of additional alleged violations of the same type since the last complaint, for example) would necessitate the Board's looking into such a complaint as a "new" complaint. Otherwise, a hypothetical property owner could be given license, in my opinion, to continue to commit the same type of Ordinance violations!

Thankfully, more informed heads quickly prevailed to ensure your rights to Free Speech, but it shows me at least that the electorate needs to be ever-vigilant lest such indefensible positions be taken.  What if there were a Board in place that agreed with Supervisor Madden and an attorney were not present to set things straight?  That may seem far-fetched to you, but I, for one, certainly would not have envisioned this occurrence that I and others witnessed on November 10th at our Town Hall!


This again underlines for me the real need for public officials to attend training and information sessions.  And, perhaps, that it might be a good idea for citizens to attend a meeting now and again!

Complaint policy revamp

Chairman Storlie

Isn't it interesting that Chairman Storlie told the Planning Commission that the Board had been misinterpreting the Complaint Policy.  He informed them that it was really up to the Board to decide if a complaint had merit.  Then they would decide if a complaint should be followed up on.

Letter dismissing complaint.

The timing of this "discovery" is what interests me most.  You see, it turns out that Supervisor Ceminsky was the object of a complaint regarding the use of his outbuildings.  It was decreed that the complaint had no merit apparently, as stated in this letter that was sent to the person making the complaint (and who will remain anonymous, according to Township policy--at least as long as the Board continues to adhere to that part of the policy).

What do you think?  Does Mark Ceminsky run his construction business out of his home and not his outbuildings, as Township rules require?  If he is using his outbuildings for this business endeavor, that is in violation of the ordinances.  These rules are being enforced with others in the township by the current board.

Reprinted below for your consideration is the text of the original complaint.  You decide.  Did it have enough merit to at least be followed up upon by a NEUTRAL party like the Building Inspector?
________________________________________________________________________________

With recent, stepped up enforcement of the home occupation ordinance, it would be hypocritical for our Board of Supervisors and Planning Commission members to be in violation this ordinance.  They should conduct their businesses so that they are above suspicion.

I request that the building inspector view the contents of accessory use structures (including the temporary storage building) at the home of Supervisor Ceminksy to make sure that Beaver Creek Construction http://www.beavercreekco.com/ does not operate out of, or store equipment in, his accessory use structures.  If this were the case, it would be in clear violation of the ordinances as they are being enforced against other residents and potential buyers.

Over the past few years, there has been an expansion outdoor storage at the home of Supervisor Ceminsky.  The company website does not give a specific street address but it has a Farmington city address.  Mr. Ceminsky advertises his work , that is, that the landscaping was done by him, with signs at his property.  Many companies do this immediately after a project is completed.  But if the sign is permanent it requires a permit and a broader discussion about its legitimacy.  Mr. Ceminsky parks a business trailer outside his accessory building with the company name on it in a way that makes it visible to passers by.  The Township has had discussions on this in the past.  Does it constitute advertising or is it inadvertent?  How can we make the distinction? 

Mr. Ceminsky’s company’s business is remodeling, construction and landscaping, according to his website.  It is possible that everything he uses is contained within the trailer , but this seems unlikely.  Unidentified materials outside his temporary structure (beams of some sort) appear to be related to the business, as do some pieces of equipment that sometimes parked outside his buildings.

It is confusing to residents who are trying to abide by the ordinances when they see Supervisors and Planning Commission members skirting or violating the ordinances they have been elected to enforce. 

Photo of temporary structure, accessory use building and trailer at the Ceminsky residence.

Not included here, but part of the original complaint, were a series of historic airphotos showing an expansion of the use at this site under the ownership of Mr. Ceminsky.

YOUR PUBLIC OFFICIALS AT "WORK!"

The link below will take you to a recording of a short part of the June 11, 2012, Town Board meeting.  In it, Supervisor Pete Storlie and then newly-appointed Planning Commissioner Butch Hansen have what yours truly will describe in my "down-home, folksy" manner (smile) as a "set to."

LET ME SET IT UP FOR YOU:
The Board has been discussing various matters with Building Official, Scott Qualle.  They have just been on the topic of a property that has three "ag" buildings that are, admittedly, according to Mr. Qualle, being used for purposes other than ag. (He has had a conversation with the owner.) There has also been un-permitted construction that has taken place on the middle building of the three.  Inspector Qualle had sent a letter to the property-owner concerning all this, asking for a reply by May 23, 2012.  Mr. Qualle tells the Board that no reply has been received. It is now June.



On the recording one hears that the Board apparently wants to MOVE ON to septic issues without giving further direction to Mr. Qualle, but Scott brings them back to the issue, asking them what next?  What is next at this meeting is a truly "transparent" moment in government which we all hear so much about these days!!!


You will first hear Inspector Qualle asking for direction, and then Supervisor Storlie, Supervisor Miller, Supervisor Ceminsky, and Commissioner Hansen. (Mr. Hansen commented on the Board's discussion uninvited from the side table, which then-Chair Budenski later points out to him.). There is a part in which it is hard to make out the Clerk's comments, but she is saying there are no permitting sheets in the files; if you turn up the volume on her comments, you will be able to make out the latter part.  It goes on from there to Supervisor Miller, and then more Commissioner Hansen and then the heated exchange between Supervisor Storlie and Commissioner Hansen. You will want to wait for it.

This "main" exchange between Supervisor Storlie and Commissioner Hansen will certainly be eye-opening for some of you.  For others in our community, however, I am afraid it will be just a surprisingly public affirmation of what they might have suspected as possibly going on for some time outside of public scrutiny.

In either case, yours truly will say I expect much more from my public officials than THIS.

Then-Chair Brian Budenski attempts to mediate and gives background on how other complaints have been dealt with. Supervisor Madden asks a question about back-up.  Supervisor Miller backs up Mr. Qualle at the end, his words showing he understands Qualle's role, which Scott has explained to the Board..

Click on Board Meeting

It is now October, 2013, which, of course, you know.  That is one year and four months later and nothing has been done about this yet!  What are they waiting for?  Could it be for that "nasty contract" to expire? Just a question....................

PAPER OR PLASTIC? THE "MIXED BAG" CONTINUES...

Revisiting some facts from previous post: All five Supervisors present; Sheriff's Deputy and Township Attorney, Chad Lermmons, also in attendance.

As a now-regular "feature," the Board has placed "Outstanding Complaints" on its agenda. This, in my opinion, is largely in response to repeated comments they have heard that these complaints have been dealt with in a very sluggish manner, not by any real initiative on their part. WELL, to illustrate how "tuned-in" they are, the Board did not deal with or give any updates on any outstanding, "old" complaints.  Why Not? Evidently, because the Board does not yet have a list (Get that--a list?) to work from. Now, believe me, anybody who has been sitting through these meetings could give them the list on the spot!  But, because they do not have a list in front of them, they do nothing, the Chair just moves them on to the next agenda item!?


What were these matters they "sat on," as some might describe it? One that has been around for quite some time is about the uses of three supposed "ag" buildings (there is no record of anything else having been permitted, as determined by our Building Inspector/Official and the Clerk after examination of the files). One of these buildings is currently for sale, along with the house on the property.  This is the building mentioned before whereby the prospective buyers and the realtor (to their credit) came in to ask the Board about the permitted use of the large building. They were told that personal storage is permitted, but NO USE for a business, not even storage. This was directly from the Attorney, Mr. Lemmons, referencing the Ordinance portion that applies, and supported, correctly, by Supervisor Miller.  Yet, when the Board was told by the realtor and the possible buyers what they have seen as the business use already there, Supervisor Miller then said, "We don't want to hear about that.  Don't tell us about that.  It has been a problematic property," or words very close to that. So why doesn't HE remember this matter at the last meeting and bring it up for the Board discussion under this agenda item? He needs a list?

Let me explain something if you don't already know: Hypothetically, if one applies for an "ag" building, all one pays is a $25 application fee, agriculturally used buildings being exempted from permitting under the Building Code and thus also exempted from any permit fees.  State statute is explicit, however, on what building use, and by whom, qualifies as "ag," including that there must actually be "ag" taking place there! (Go figure...) The permitting fees under the Code for buildings if they are not for "ag" use could be in the hundreds or even thousands of dollars to the Township.  It has been very clearly stated by the Building Official that any "ag" building which changes use must be permitted for the actual use as if it were new construction, with all attendant permitting fees. This has come up in reference to different properties.  We'll leave alone for the moment whether the hypothetical one's actual non-ag use of such buildings that may occur is even legal under our Ordinances or not.

Further, one of these "ag" buildings (one that is not for sale) has had obvious construction to it: windows apparently on two floors and a change in the door opening. This much is visible from the road. This has happened without benefit of any permit having been issued.  These matters, building designation/use and lack of permits, were brought to the Board's attention many, many months ago by Scott Qualle, Eureka's Building Official, with no further "real action" actually happening from the Board's part. (They eventually had "okayed" a visit to the premises by the Building Official, also months ago, but to this writer's knowledge that has still not taken place; why, I am not sure.)

I put "okayed" in quotation marks because the Building Official is empowered to carry out these duties whether the Board "approves" or not. This is a fact that some in the community, taking their public comments at face value, don't believe to be the case.  (One person even said the Board "should rein him in.") However, it has been pointed out to the Board by more than one attorney that, in fact, Mr. Qualle DOES have that ability. Nonetheless, even some on the Board have clearly seemed to me and to others in attendance at certain meetings to have had "a problem" with this.


For example, from the April 8, 2013, Town Board minutes:

"N. Building Official Issuing Citations
Supervisor Steve Madden commented that he does not feel that the Building Official should have the authority to write citations. He should only be able to write citations with permission of a Town Board Supervisor or a vote from the Town Board. [Wrong!]
The only citations he has written have been directed by the Town Board. [However,] he has the authority to write Building Code Citations. 
The Building Inspector Supervisors have been working on putting a policy in place for contacting the township." (Additions and emphasis mine.)

The Building Inspector Supervisors at the time were Supervisor Storlie and Supervisor Ceminsky, both of whom wanted to be alerted before the Building Official acted in the very capacity for which the Board hired him.  Evidently, when called by irate constituents (at one meeting they mentioned having received such calls: "We get yelled at."), "Let me check on that and get back to you" doesn't work for them.

All this caused me to wonder under what circumstances would a Supervisor tell the Building Official to NOT write a citation or order concerning a violation of our Ordinances?  Beats me.

Indeed, wouldn't you think that Commissioners and Supervisors would, for another example, expect landowners to respond appropriately to the Building Official's letter? I know at least SOME of them do, and would like to think that they ALL do... but it appeared not so in a (recorded) heated and astonishing exchange between Commissioner Hansen and Supervisor Storlie at a public meeting over a year ago. To wit: The property owner who had not responded in a timely manner to the Building Official's letter regarding these buildings had been told, it was admitted, that he could "ignore" the letter! Hansen alleged that he did that after talking to Storlie and receiving his direction in this, and Storlie finally admitted in public that he had done so!!! (See first item on page 7 of  Board Minutes June,11, 2012 )  The Board-approved minutes do not include the embarrassing exchange.  (Imagine that.) Note, the Building Official cites state statute and his licensing as they apply to his duty to carry out his job.
This was 1 year and 3 months ago...and counting.

My Goodness! With what I will describe as such a "hazy history," why isn't the Board now making sure this and other matters on their "Outstanding Complaints" list are taken care of in a more appropriate time frame?  Do they really need a list after these items have come up time and time again over years? Do they believe that everyone should abide by the rules?  Do they understand their obligation to enforce the Ordinances? There is currently a lawsuit ("Does This Suit You?" post) about enforcing the Ordinances, as you know.


Some other complaints discussed at other meetings but not even updated at this one are the model airplane noise complaint that should have been resolved by now (and maybe has been), an ongoing and repeated building setback issue that has been cited and was to have gone to court, a junk complaint (the one coming up on its third-year anniversary) which was supposed to have been cited. What is the status of these?
Now, I think that these complaints are of interest to others beyond those who filed them.  I believe that many in the community, I among them, would like to know how the Board handles complaints, follows up on them, and brings them to final resolution.  There's a word for you: "final."



STILL TO COME: JOINT POWERS AGREEMENT WITH THE DAKOTA COUNTY SHERIFF, A FURTHER POINT ON ACCESSORY BUILDING SIZE, and BUILDING INSPECTOR CONTRACT.

Eureka Town Board meeting

Town Board meeting tonight, September 10, 2013!  7:00

Business of interest:  Citizen complaints, Text Amendment - Agri-tourism, Accessory Building size, Road Maintenance Contract, Eureka Sand and Gravel, Building Inspector Contract and other items.
                                                      
                                          KEEP CURRENT ON TOWNSHIP ISSUES!                                   

Can You Say "Estoppel?"

At the August Board Meeting, the Board was finally  considering a response, after a number of months, to a formal complaint against a well-known property in the Township.  This response could have been an enforcement of the Ordinance it was alleged to have been violated.  During the discussion of the matter, the Township Attorney, Chad Lemmons, of Kelly and Lemmons law firm, stated to the Board that estoppel had not attached and that, indeed, it is very unusual for estoppel to have attached in governmental matters such as the one before them.  (This was one of several statements by him to the Board on the complaint.)

Interestingly, the Board did not ask the attorney to clarify what he meant by "estoppel has not attached."  I don't know the reasons the five of them did not ask for this information since I cannot read their minds and they did not speak on the subject, but perhaps:

1)  They've all gone out and received law degrees recently.
Just kidding...

2)  This concept of estoppel has been so well and exhaustively explained to them during the many special meetings called concerning this property and the Township's own counterclaim lawsuit regarding it that they did not require a refresher.
OR, understanding it well themselves,
3)  They somehow did not feel that the many people present in the audience would benefit from a full understanding of what the TOWNSHIP Attorney was advising them. Forget that the audience members, along with the rest of us taxpayers, are paying for this advice!
4)  They did not feel a need to address it because they did not consider that estoppel having not attached was that important, so why delve into it anyway???  Just a question...


Why is estoppel important?  Here are two brief, general explanations of it which, along with other information, can be found online:

Estoppel in its broadest sense is a legal term referring to a series of legal and equitable doctrines that preclude "a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth, either by the acts of judicial or legislative officers, or by his own deed, acts, or representations, either express or implied."

Estoppel is essentially a rule of evidence whereby a person is barred from denying the truth of a fact that has already been settled. Where a court finds that a party has done something warranting a form of estoppel, that party is said to be "estopped" from making certain related arguments or claiming certain related rights. The defendant is said to be "estopped" from presenting the related defense, or the plaintiff is said to be "estopped" from making the related argument against the defendant.

What this means in any matter in which estoppel has not attached is essentially that past decisions by former Boards which may have been in error, may have been founded on partial or incorrect information, may have been you-fill-in-the-blank, do not stop this Board from finding otherwise. In this particular case, if they had reason to believe that the Ordinance should be enforced in the here-and-now based on the argument and facts laid out before them by the complainants' attorney, based on the Ordinance, and based on the Township Attorney's complete advice, they were not bound legally to do otherwise.  There was not a precedent set by those earlier Boards which must be followed.  If they felt previous Boards were incorrect, they could "right the wrong."

Ultimately, the Board voted 3-2 to allow the property owner to continue to do what was being done and found that the property owner was not in violation of the Ordinance. Supervisors Storlie, Ceminsky, and Madden voted in favor of the property owner complained against, while Supervisors Budenski and Miller voted against the motion.

Now, what they ultimately decided was their decision, whether you or I or anybody agrees with it or not. They were elected to make these decisions on behalf of all of us.  I simply say that I believe it clearly would have been preferable to directly address the concept of estoppel when it was raised, explore what it means, and explain in so many words why they were deciding as they did even though it had not attached. It appeared to me by some statements made that at least some felt a need to go along with what other Boards had done, so I am still not sure, because they did not directly address it, whether this concept WAS clearly understood by (all of) them. Or perhaps those parties simply believed that what other Boards had done was correct in spite of certain facts, definitions, and explanations about local ordinances taking precedence that were presented that night.  

In all matters such as this which could be subject to further legal action, taxpayers would surely desire that, and want to be assured that, each aspect of legal advice is clearly explained in some detail for all, examined thoroughly, and weighed consciously before decisions are made.  

Hoping it IS a "beautiful day in your neighborhood..."

What's in your outbuildings?

When I bought my farm, built  in the 1880s and still owned by the descendants of the homesteaders, there was over 100 years of stuff in those outbuildings.  It was all laid out for every one to see at the auction.

The good stuff went fast.  There were horse-drawn sleighs; an anvil and blacksmith tools; a fainting couch. We were left with the stuff that no one wanted.  There was a chicken coop with its roof held up by twine-tied stacks of Farmer's Wife magazines.  The next coop was a museum to the history of vacuum cleaners.  A room in the barn was filled with bread bags stuffed in other bread bags and jars of straightened baggie twisters. The hayloft was a church with  lectern, two pianos, dozens of pews, and boxes of psalm books in Norwegian, plus lots of pigeon poo. The milking parlor archived hundreds of windows and extra panes of glass; straightened nails, tin ceiling panels, and doors from somewhere else entirely. You get the picture, and there were over a dozen buildings.

We eventually dealt with most of it, finding appropriate homes, renting dumpsters and trying to learn  how much could be amassed in a lifetime or two and keeping an eye on our stashes of yarn, washed ziplock bags, wine corks, canoes, bikes and yes, straightened baggie twisters.

Why does the Township get involved with what we have in our outbuildings?   Well, the short answer is, they don't if we are an agricultural property or if we are using them for personal storage.  What we keep, hoard or save for a rainy day is our business and our childrens' problem (or embarrassment at the auction).


But are all accessory-use structures used for personal property?  Even the really big (and getting bigger) ones?  Can we trust the current Board to enforce our ordinances and make sure that they remain for personal use?  What do they keep in their outbuildings?  What are we to think when a current Planning Commission member said that, as long as what's being done is under the radar, its okay."?  Or when a long-time Board member said,  "We don't want to know about that.  Don't tell us that.  That has been a 'problematic' property."   with regard to how to represent a well-known property to prospective buyers.  The real estate agent was present at the June Board meeting with two potential buyers when that statement was made.  Everyone knew that the place for sale had been operating commercially as a number of things over the years...most recently as a furniture and second-hand store with food for sale.    Even the County acknowledged it was a commercial interest and had been taxing it as such.  So why do we allow this to happen?  Why should we care?


The Township should care because it has ordinances that protect the health, safety and welfare of its residents.  Home occupations are allowed but are to be limited to the home.  Businesses are not to be run from accessory use structures. Even storing business equipment or materials there, as recently clarified at the June meeting by the Township Attorney, Chad Lemmons is not permitted. We do not have sewers, fire response, road infrastructure, or the setting to allow businesses to operate from accessory use structures.  We do not have a commercial zone that isolates and separates people's homes and backyards from back-up beeps, delivery trucks, motorized equipment, bus parking lots, waste piles....  There are simply things that should not go on, be stored, used, heard or dumped on the ground in a non-sewered, rural community.  We lay it all out in the ordinances and comprehensive plan.

It is also laid out for display at those auctions.  We can't pretend to not know what's going on.   If you have a complaint, use link to the form on the right side of the blog.  Your name will be protected and the complaint will have to be addressed by the Board.

Ordinances are the Law!

There seems to be some confusion, even among current Board supervisors and Planning Commission members, as to what an ordinance actually is.  They have been referred to as "guidelines" or "recommendations".

In order for a law to be effective, it has to be recognized and enforced.  Why have it on the books if it is just going to be overlooked or if there is no one willing to enforce it?

Eureka has a lengthy list of ordinances that have been written over the years.  They are intended to protect the health, safety and welfare of the citizens of the Township.  They also keep the Township headed in the right direction as described in our Comprehensive Plan.

The Board can use our building inspector and Dakota County Sheriff for ordinance enforcement.  However, the informal policy in our Township is to take a passive approach to ordinance violation.  Ordinance infractions aren't actively looked for; they typically come to light through the complaint process.

Citizen addressing the Board on an open complaint

This is a process by which a neighbor reports an activity that they perceive to be an ordinance violation. Their name is stripped from the complaint by the clerk and has to be kept secret (despite the way Chairman Storlie handled a complaint at a recent meeting, asking the complainant to identify themselves, and when no one did, striking the topic from the agenda). The complaint has to be addressed by the Board within 30 days and there is a sequence of follow-up steps that must be taken in order to resolve a complaint.

No one should have to have their complaint go unaddressed for, let's say, a year or two.  That would be egregious!

So ordinances are serious business.  It takes a lot of deliberation to write a good one.  They should be consistent with the Comprehensive Plan.  A citizen can propose ordinance language (consider how the AgriTourism discussion began).

The Township has a fund set aside to create a Task Force to research and write ordinances, with the help of professionals like planners and our attorney.  We have taken months to craft well researched ordinances in the past.  Recently a Task Force was convened to address the topic of Transfer of Building Rights.  This is close to becoming law and will be the subject of another post.

So why this post about Ordinances 101 now?  Well, I swamped the blog with posts about AgriTourism recently.  I should have summarized or sharpened it to a point.  Here goes:

We should only invest effort in ordinances when there is a demonstrated need and a will to enforce them.  They should be well researched and vetted.  Putting a law on the books to address a current situation or personal priority of a Board member should be avoided.  

Sure, ordinances can be amended and repealed, but that takes time, effort, $$...We'll have to do that soon for a hastily crafted ordinance on accessory-use structures passed by the Board last month because it has a gaping hole in it.

Bottom line is, why put an ordinance on the books that the majority of Township citizens who testified at a public hearing don't support?