Written by Patty Decker Tuesday, 04 September 2012 13:59
The Marion City Board of Zoning Appeals will meet at 7 p.m. Sept. 6 in council chambers to decide whether the proper procedure was followed regarding a conditional use permit to build a communications tower at the new county jail.
The hearing was prompted by a notice of appeal, dated Aug. 7, from Darvin Markley, who stated that Doug Kjellin, city administrator, did not have the authority under the zoning regulations to issue a permit to the county.
Markley, who signed the appeal as a resident, is chairman of the city’s zoning appeal board, which is the forum that will hear the matter.
David Yearout of El Dorado, who serves as the city’s planing and zoning consultant, said the appeal stops the building permit.
“It’s in a freeze,” he said, adding that the question is whether the administrative decision to issue the building permit for the communication tower as a permitted use was correct without going through any other rezoning actions or other zoning steps.
“That is the whole debate,” Yearout said. “The only thing the BZA can consider is whether the administrator’s interpretation was correct,” he said. “So when they get to public hearing that is what they are going to hear.”
Some of the questions Yearout said the BZA will need to consider is, what from the administrative point of view was the basis for decision; why was it made; what the person appealing this believes should have been the interpretation, but nothing else.
Some questions Yearout said are not relevant include questioning how the regulations apply and not whether county was doing the right thing.
He said he believes the BZA options are either to concur with the zoning administrator that his decision was correct on interpretation and allow the decision to stand.
The other choice would be if the BZA says, no, that in their opinion the administrative interpretation was incorrect and, therefore, they then will say in their opinion how the regulations as written should apply.
The evidence the BZA would be looking at includes the letter from Kjellin citing his reasoning and rationale as to why he issued the permit.
“In all the years I have done (planning and zoning), I can still count on one hand the number of times I have had cases where I have actually gone to somebody challenging an administrative decision,” he said. “It very rarely happens and so there is not many historic documents to point back to.”
Yearout said every case is different, unique and has its own set of facts that come into play.
Based on his experience, he said, the way the law is written, it requires interpretation, as do all laws.
“The BZA will get the dubious task of taking the regulations as written and look at the whole thing not, just bits and pieces.
“The BZA is all volunteers, and the sad part is there are going to be people involved in this that will be unhappy about being in the eye of the storm.”
Yearout said he believes it is already happening.
“Unfortunately, in the eyes of the law, this is the process that is laid out and how it is supposed to work,” he said.
Thursday’s meeting is open to the public.