Written by Patty Decker Tuesday, 31 July 2012 13:52
The Marion City Council heard from its planning and zoning consultant, David Yearout of El Dorado, at its meeting July 23 regarding the city administrator’s decision to approve the 92-foot tower for the county jail.
Yearout said the decision was within the scope of City Administrator Doug Kjellin’s authority to conclude the tower is a “normal accessory structure that can be found with government-based building as proposed.”
After reviewing the city’s regulations on zoning with Kjellin, city and county attorney Susan Robson and Marty Frederickson, zoning administrator, Yearout said the city is on solid ground to give the county the go-ahead to erect the tower using the existing conditional-use permit.
“I am comfortable with everything that has happened up to this point,” Yearout said.
At the same time, a 30-day window exists from the date of Kjellin’s letter to the Marion County Commissioners for the public to appeal the decision to the Board of Zoning Appeals, which is consistent with the statutes on the right to appeal, Yearout said.
The letter to the commissioners was dated July 16 with the appeal period expiring Aug. 15.
“Anyone that is aggrieved by the administration decision can appeal that decision to the board of zoning appeals,” Yearout said. “If that happens, everything stops until the hearing is held and the board makes its decision.”
The BZA’s decision is final, he added, and not something the governing body—city or county—can overturn.
The only recourse if someone wants to challenge the BZA decision is to take it to district court, Yearout said.
Following a review of the procedures in the event of a challenge, Yearout, Kjellin, Robson and Fredrickson discussed alternate approaches.
“Depending on the decision of the board of zoning appeals, if it gets to that point, then we can talk about what other means might be considered,” Yearout said.
Yearout said one option would be a separate conditional-use permit that would waive 99 percent of the standards.
“That’s a really thin piece of ice to be standing on in really deep water,” he said.
They also talked about amending the existing conditional-use for the jail.
“That makes a little more sense in terms of recognizing this is a common accessory structure next to a government building,” he said. “It would be an easy argument to make—but again, if we take it to the conditional-use process, now we are right back to waiving all the standards.”
The safest challenge, he said, is to acknowledge the tower as a common accessory ancillary structure to a government building, and one housing emergency communications dispatch operations.
“We can debate whether (the zoning administrator’s decision) was the right decision, whether it was the right location, as far as what the county commissioners did, but that’s not the point,” Yearout said.
“Those are political issues and decisions that were already made,” he said, noting that this issue has “stirred up” a lot of people.
If the appeal is filed, Yearout said more discussion will be needed.
“We will talk about making sure we keep all the people involved in the right lanes as we take the next lap around the track,” he said.
Following Yearout’s discussion, Councilor Todd Heitschmidt asked for clarification about the appeal process. He wanted to know what decision the BZA could make if it challenges Kjellin’s decision. Could it be Kjellin’s decision to move forward or does the BZA need to go back to the regulations and say: “No, this is not an emergency tower.”
Yearout said the issue is somewhat backward, based on how appeals work. Normally, when court cases are appealed, it is usually because the applicant feels the administrative decision was wrong.
“In this situation, the administrative decision was made to allow something to move forward without going through the hearing process,” he said. “That defines the boundary of what the board of zoning appeals has got to deal with, not anything else.”
Yearout said he looked through the city’s zoning regulations, but he didn’t find anything that challenged the language regarding the issue.
If the BZA overturns the zoning administrator’s decision, the case would go back to the applicant, which is the county.
“(The BZA) has to follow the requirements of the regulations to get that tower approved, which is a separate conditional-use permit application or amendment to the existing conditional use permit, but that is the limit of the board of zoning appeals decision,” he said.
“If (the BZA) gets off on other issues, they are outside the box and it has no relevance to the case.”
Yearout said most public hearings are for people to speak their mind as if the hearing is a public forum when it really is a hearing on a specific issue.
“It doesn’t mean we won’t listen to other stuff,” he said. “But at the end of the day, the only thing that’s going to be factually applicable to the hearing is what is relevant to the case.
“If someone speaking at the public hearing has other thoughts, theories or ideas that the county is wrong about this, or the city is wrong, or that if only they listened 15 years ago,” Yearout said that’s “fine” to discuss, but it would have no relevance to the case.
He was quick to add that in no way did he say this to belittle people having something to say at a public hearing. Rather, his point was that everyone needs to stay within the confines of what is legally applicable.
“Factually to this issue, if appealed, is only whether or not the decision was correct in saying it was an accessory structure for already permitted use.”
Heitschmidt asked if the county could appeal if it was deemed the wrong decision?
Yearout said it is possible for Marion County to file a court case against the BZA to overturn the decision.
“All that could happen. I’m not saying it will and not saying it should, but it could,” he said.