"ALIEN INVASION"--- PART 2

Remember the "loose cannons?" Agritourism Hearing?  Picking up where we left off...

Eureka spends a significant amount of funds on attorney advice each year.  (At the budget meeting last night, the Board settled on $30,000 for the "legal fees" line.  This is in keeping more or less with the past.) This expenditure is totally appropriate, in my opinion, as there are many matters where the admitted amateurs in our public offices need assistance. Anyone with any humility acknowledges that.  If one is intelligent, one seeks advice from time to time.

Therefore, one might think that when such advice is given that it would be followed. Ask for explanation if need be, explore the topic fully, but recognize the Attorney has the J.D. and you don't! I have witnessed Chair Hansen publicly tell Chad Lemmons (Township Attorney) that he didn't agree with the legal advice that Mr. Lemmons had just offered.

Hello???

Mr. Lemmons has on more than one occasion/meeting said that he recommends an Interim Use Permit (IUP) for all Agritourism. (This is separate from Agricultural Direct Market, selling products.) Lemmons has stated that Agritourism encompasses many different uses and has also caused problems for our Township in the past.  True.  He pointed out that this would give the Township, the operator, and the neighbors a chance to address each case individually, affix appropriate conditions, and clarify where everything stands.  Much better than relying on a complaint basis enforcement for an "Ordinance" that is so open to interpretation as the one currently proposed by (the majority of) the Planning Commission- my opinion. If an operator violates a condition, that can be directly addressed as it was agreed upon in the first place.  If a neighbor complains about something that wasn't part of the conditions, unless it violates some other ordinance, the operator is protected. The Township must do a good job on attaching reasonable and related conditions on the first go-round, however, as it is next to impossible to add to them after the fact. (Were there an amendment to the IUP, this would be an opportunity to do so.  Otherwise, the operator has to agree to the addition.) Requiring an IUP makes good sense.

HOWEVER, this recommendation has not been directly addressed by the Commission OR the Board as official bodies. Commissioner Barfknecht did, however, ask Chair Hansen at a recent special meeting, "Why aren't we following the attorney's advice and making this an IUP for Agritourism?" Hansen's reply?  "Because I don't think it should be." (My emphasis.) Commissioners Novacek and Cleminson remained silent on the topic and therefore acquiescent.  Commissioner Jennings was absent as this was a special meeting called for a date she was not able to attend. The majority of three agreed to move the language on.

Okay, that's bad enough, but, in my opinion, further damage was done. Without a requirement for an IUP from the get-go, there are various thresholds which, when surpassed, require the operator to come in of his own volition (sans complaints) and request an IUP. (This in itself is problematic for many.) The Task Force on Agritourism, six people, had agreed and submitted threshold language referencing, among other things, the number of cars and the number of people.

In what I would call an ill-reasoned and inappropriate move, the three male Commissioners decided that they wanted to remove those particular thresholds for both Agritourism AND Direct Marketing and replace them. What did they choose to replace them with? The Outdoor Assembly Ordinance!  Reason given?  "It's already on the books."  So are dog kennels and swimming pools, but that doesn't mean they fit here!!!

The Outdoor Assembly Ordinance (once I got them to stop calling it the Large Gathering Ordinance) is what has been dubbed "The Woodstock Ordinance." No, not that one, the muddy one! The reason is obvious: it is an assembly of people for an outdoor event.  Eureka's ordinance closely follows the County Ordinance.  When the County reduced the number of people from 500 to 300, Eureka followed suit. If someone proposes to hold such an event and anticipates 300 people at it OR 100 people for eight consecutive hours, that person must apply for a permit.

So, just on the face of it, this move by Hansen, Novacek, and Cleminson greatly increased the number of people allowed from 100 on a daily basis to 300 before a threshold is crossed and a permit is required.  The part referring to the lesser number over eight hours could be interpreted by some as allowing quite a few more as people come and go throughout the day for their Agritourism activities.  I don't agree with that, but I do have enough imagination (and experience) to envision someone making the argument.

They also took out the threshold for the number of cars as well. The argument was that it wasn't enforceable.  Sherri Buss of TKDA and Chad Lemmons had suggested a means by which it would be enforceable: change car trips to cars parked on the property.  Easily counted, right? Traffic was supposed to have been a concern that was addressed and the Ordinance now is silent on this.

So for the reason of increasing the numbers alone, I object to the Commissioners (two of whom were on the Task Force) overriding that group's recommendation. You should know that this idea of using the Outdoor Assembly Ordinance was discussed and rejected at Task Force meetings. The group of six agreed to submit the language, including the two thresholds that these three Commissioners want to remove.

It doesn't stop there, though. That Ordinance requires a number of other things fitting for an outdoor assembly but certainly not for Agritourism and Agricultural Direct Marketing.  Commissioner Barfknecht pointed this out, but she might as well have been speaking Hungarian!

What are those things?  Well, some of them are:

    ** A license for each "event"

    **Security guards

    **Physician and nurse and an enclosed facility for treatment

    **A fence surrounding the grounds to keep people from entering (without a ticket)

    **Ambulances

    **A BOND!!!

    

All so appropriate for corn mazes and selling ag products!!

At a subsequent (regular) meeting when she was able to attend, Commissioner Jennings asked what about the people inside?  The Agritourism Ordinance addresses how many square feet of a building can be open to the public, after all. Where do those numbers come in?  How is Agritourism an Outdoor Assembly?

More Hungarian.

More telling to me: At one point, Commissioner Novacek stated, "We're just trying to keep in place what already exists." Hmmmm...  He also came up with an exemption for the prohibition on outdoor lighting for such uses other than what may be required under building code. He suggested that seasonal, decorative lighting be exempt.  Such as Christmas lights. Putting aside the merits of the argument. I was struck by his foresight to even THINK of this...

LAST POINT FOR NOW:  The Agritourism Ordinance Public Hearing has been rescheduled for Tuesday, February 17th, at 7:00 p.m.

If the Board is actually going to get its opportunity to review the language at its regular meeting this coming Monday night, how do you, the citizens, get ten days' time in which to review the language? Ten days' published notice of the hearing is required by law, but the language isn't even ready yet.

        

IS THE AGRITOURISM CLOCK TICKING?

     The monthly meeting of the Town Board was held on January 12, 2015. The following is an update                       on agritourism, IT and the VRWJPO ordinance.                                                          

     Vermillion River Joint Powers Organization Ordinance (VRWJPO): The Township will start administrating the ordinance on March 1. The attorney stated that the Township needs to adopt the summary ordinance as prepared. The Ordinance was adopted and a summary was to be prepared for distribution. The Planning Commission was tasked with reviewing the Watershed Management Relations summary ordinance for any changes to procedures and creating an application form. The attorney stated the summary needs to be adopted before it can be published by the Town Clerk. A motion was made by Miller and seconded by Ceminsky to adopt the summary. The motion passed.
     Supervisor Miller stated to Commissioner Novacek, the Planning Commission liaison, that he was especially concerned regarding the procedures for implementation of the Water Resources Management Ordinance and the application stating the March deadline.  He suggested a special meeting be held by the Planning Commission. Supervisor Miller stated that the Board had directed Chair Hansen to present the VRWJPO deadline as a priority for discussion. Both Commissioners Jennings and Novacek agreed that Mr. Hansen did not convey the message. Commissioner Jennings stated that a draft copy of the December Town Board meeting minutes had not been given to the Commission for their January meeting.
     Supervisor Ceminsky made a motion to direct the Planning Commission to call a special meeting to address the Watershed Ordinance. Chair Miller seconded the motion with an amendment to discuss the Watershed Ordinance and ONLY the Watershed Ordinance. Supervisor Ceminsky accepted the amendment.  The motion passed. The intent was to have a "polished" instrument on the Ordinance and a completed "ready to go" application form to be presented to the Board in February. Supervisor Ceminsky agreed to speak with Chair Hansen regarding the special meeting. Supervisor Ceminsky felt that there should also be a special meeting for agritourism. He wanted to move it forward to get it "off the plate."  He made a motion to allow the Planning Commission to hold another special meeting.  The Board did not agree with this motion and it died. Chair Miller felt the agritourism discussion should take place at the Planning Commission
February meeting.
                                                                             
     FAST FORWARD: Supervisor Ceminsky agreed to talk with Chair Hansen regarding the special meeting for discussion of the VRWJPO ONLY! Chair Hansen, without consulting with the Board, took it upon himself to schedule a special meeting on January 20, 2015 at 7:00 p.m., to include BOTH VRWJPO and agritourism even though the Board directed otherwise. He scheduled the special meeting on a date Commissioner Jennings is NOT available. When the public hearing for Terri Petter was scheduled, it was done around Commissioner Hansen's schedule so he could be present. Where was the disconnect between Ceminsky and Hansen (or was there one)?MAY I ASK WHY? Agritourism is a very complicated issue with the potential of affecting all land owners and future zoning. Who is running this Township? Note: Supervisor Ceminsky, Commissioners Hansen and Novacek's terms end in March. Is there a sense of urgency?                                                       


     IT UPDATE: Supervisor Behrendt stated the web site is taking more time than expected; therefore, the Clerk and Treasurer emails will be set up to be consistent with the web site.The Board will then discuss individual emails for Commissioners and Board members. He expects the web site to be in production by next month. There will then be training for the Clerk and Deputy Clerk.
     The Treasurer requested the purchase of a new lap top computer. Supervisor Behrendt offered to donate
a lap top that would be of a higher quality than the lap top the Treasurer would be authorized to purchase. Declining the offer, Supervisor Miller suggested the Board purchase a new lap top computer.  This purchase was approved. Thank you Supervisor Behrendt for once again trying to save the Township money.

     AGRITOURISM: Commissioner Novacek reported to the Town Board on the Commission's discussion of agritourism at their January meeting. He stated that there were three significant issues that prevented their discussion from being sent on to the Board. He stated that hopefully the language could be addressed at the February Planning Commission meeting.
     At the AUGUST Town Board meeting Supervisor Behrendt expressed concerns regarding allowing agritourism as a use can have different implications in different areas. Chair Hansen attended this meeting. Supervisor Behrendt indicated that the Township has had problems with past issues and to come out and say "it is allowed" might be a form of an ordinance zoning change. Attorney Lemmons stated that he had concerns regarding making agritourism a permitted use because of all the potential uses. If agritourism is allowed, he felt an IUP would be MUCH better. Mr. Lemmons stated the same at the January Planning Commission meeting. WHY DOES THE ATTORNEY'S ADVICE CONTINUE TO BE IGNORED?
   

     Suprvisor Behrendt stated that he would like clarification of what the expectations are regarding the Planning Commission's further discussion of Agritourism at their February meeting. The Planning Commission has been asked to submit their ordinance draft language to the Board for review and discussion of appropriate language PRIOR to setting a Public Hearing.
                                                                 
                                                                         STAY TUNED!

   

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







   

   

   

...AND ON HIS FARM HE HAD A...

The Agritourism Task Force met again on Tuesday, April 8, this time with Sherri Buss.  Sherri is a Senior Planner with TKDA and was able to offer some sound advice to the committee based on her experience and other townships' regulations she has worked with.  She indicated which sections of the task force's work were clear and made sense and which needed more work for better definition. She mentioned that the committee should either come up with what they think people in Eureka would be "happy to live with," or could present the thresholds to the public now to get feedback.  In either instance, of course, she said that a Public Hearing would be held so that the Township will hear from the public what its thoughts are on these items such as size of building, noise, etc.

Generally, Sherri was complimentary of the group's work thus far. The committee still has to iron out the procedure whereby it would be determined, by whom, and when a permit might be needed or not.  A registration process was again discussed as an opening step in this process.

Sherri also indicated to the task force which of their questions were really attorney questions.  The committee will meet with the Township Attorney, most likely Chad Lemmons, on Thursday, April 24 (7:00-9:00). Attorney questions from the task force are to be submitted to Mr. Lemmons midweek this week so that he can prepare for the discussion on the 24th. This would be an informative meeting to attend, even if you haven't attended any other thus far.  

I DO hope that a couple of members of the task force who said something along the lines about seeking advice from a different attorney if they "didn't like" the advice coming from Mr. Lemmons were either joking (best case) or speaking on a personal basis only.  It was unclear to me what was meant. Naturally, the Township Attorney advises the Township, I think you would agree.

The committee is nearing the end of its work.  It may have a couple other meetings after the meeting with Mr.  Lemmons before its work is sent on to the next step. Keep an eye open!

Speaking of that, I did once again ask that the minutes and materials from this committee be put on the website for the public's information, just as was done for the Transfer Task Force.  I received a response that (at least one) set of minutes was ready for that. (!) I asked that it all be put there. Currently, none of it is yet.  In fact, I didn't see even a mention of this Task Force on the website at all.  I think that either this committee or the Board itself should make sure that the public has this information well in advance of any public hearing.