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HomeMy WebLinkAbout12-16-09 bd of appeals minutes (2)BOARD OF APPEALS MINUTES December 16, 2009 PRESENT: Robert Cornell, Cheryl Hentz, Dennis Penney, Dan Carpenter, Ed Wilusz, Jane Cryan EXCUSED: Mark Nielsen STAFF: Todd Muehrer, Associa te Planner/Zoning Administrator; Kathleen Fredrick, Recording Secretary; Lynn Lorenson, City Attorney; David Praska, Assistant City Attorney Chairperson Cornell called the meeting to order at 3:00 p.m. Roll call was taken and a quorum declared present. The minutes of November 11, 2009 were approved. Penney/Carpenter WORKSHOP WITH CITY ATTORNEY LYNN LORENSON AND ASSISTANT CITY ATTORNEY DAVID PRASKA Mr. Muehrer gave a brief overview of the agenda and stated due to time constraints the Board might have to discuss the Technical Tools Memorandum at the January meeting. City Attorney Lynn Lorenson explained the Board of Appeals is a governmental body appointed by the City Council and therefore is subject to open meeting s law. The definition of a meeting is the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. Open meetings are dete rmined by purpose and numbers. If two or more members of the board discuss Board of Appeals business even though not convened in a formal matter (for example while attending a cocktail party, sporting event, at the grocery store, etc.), the attorney general could consider this a meeting and it would be a violation of the open meetings law because it wasn’t noticed or open to the public. Mr. Carpenter asked Ms. Lorenson if the Board could discuss an item that has already gone through the Board of Appeals process outside of a convened formal meeting. Ms. Lorenson suggested against talking about specifics of any Board of Appeals topics un less convened in a formal meeting. The attorney general offers specific guidance regarding open meetings law. Written correspondence creates a public record and doesn’t violate open meetings law. Telephone conference calls and email conversations regarding Board of Appeals items are considered like meetings and are subject to open meetings law. Conversations between a member of the Board and City staff members are not subject to open meeting s law as City staff are not considered part of the governmental body. Emails between staff and Board members fall under the open records law. Under open meetings law there must be a minimum 24 hour notice of when a meeting will be held. If there is a closed session, it must be noticed to the public. Meetings must also be accessible to everyone. The public is allowed to video tape or record meetings as long as they don’t interfere with the conduct of business. Open meetings law allows citizens the right to attend and observe meetings; however it does not allow th em the right to speak on items. There are certain things that by statute members of the public are allowed to speak on, for example, public hearings. Board of Appeals variances are items the public can speak on, but for workshops the Board can decide whe ther or not they want to receive public comment. Mr. Cornell asked Ms. Lorenson if there was a minimum or maximum rule regarding surrounding property owners who should be notified as far as variance requests are concerned. Ms. Lorenson didn’t think the state statue required specifics on who gets notified of a variance request. However, the City has rules on who gets notified. Mr. Muehrer confirmed for variance requests each property owner that abuts the property requesting the variance is notified as well as the owners of the three properties located directly across the street from the requesting property. Board of Appeals Minutes 1 December 16, 2009 Mr. Penney brought up an occurrence at a prior meeting. A citizen filing for a variance called members of the Board prior to his scheduled hearing to discuss his variance. Although each member declined to discuss the variance with the property owner prior to the meeting, Mr. Penney wondered if this could be a violation of open meetings law. Ms. Lorenson responded that this situation was not in violation of the open meetings law, but since the Board of Appeals conducts hearings the Board should limit outside discussions because in a hearing setting you can only base your decision on what happens inside the hearing. Ms. Cryan asked if the public isn’t supposed to contact board members regarding pending variances, why is the board member contact information on the city website. Ms. Lorenson replied that Board of Appeals members contact information has been taken off the city website. She will double check to make sure that only board member names appear on the city website. Ms. Lorenson stated that the records of the meetings are taken care of by city staff. Board members need not keep copies of the agendas, minutes, etc. However, if a board member receives private correspondence (letters, emails) related to the business of the Board of Appeals, those are considered public documents and should be given to city staff to be of record. There are two issues regarding ethics; accepting items and controlling conflicts of interest. Board members can accept items and services unrelated to their public position. Ms. Lorenson discourages members from accepting anything unless it is trivial or has insubstantial value (i.e. calendars). Regarding conflicts of interest; board members cannot take official action on any matter that substantially affects the board member, immediate family, or an associated organization. Mr. Cornell asked Ms. Lorenson if a board member informs the board of a conflict of i nterest can the board member with the conflict still take part in discussion of the item. Ms. Lorenson advised against partaking in discussion of an item a board member has a conflict of interest in as said member could be influential in the final decisio n just by his/her tone during the discussion. A board member can choose to partake in discussion and abstain from the vote; however Ms. Lorenson recommends complete recusal from the item if there is a conflict of interest. Mr. Praska explained the purpos e of zoning is to control land use and development in order to promote the public health, safety, welfare, morals and aesthetics of the community. He stated that the Board should keep this purpose in mind when citizens ask them to vary the zoning code to fit their situations. Mr. Praska stated the Board should make decisions based on the written code and should not get frustrated if the Plan Commission recommends and the Council agree to change an ordi nance essentially making the Board’s decision irrelevant. He and Ms. Lorenson encouraged the Board to suggest citizens take the route of the Plan Commission/Council to change an ordinance if it makes sense (i.e. allow larger storage sheds). Mr. Praska explained the Board has two types of authority; Administrative Appeals and City Ordinance. For and Administrative Appeals (decisions made by staff) the Board determines the intent of the ordinance and its application to the particular situation. They must affirm, reverse or modify the original staff decision in whole or in part. Mr. Cornell inquired whether the procedure for an appeal was the same as for a variance. Mr. Praska answered yes. Mr. Cornell asked in the event of an appeal, is it necessary to have finding of facts. Mr. Praska replied yes. Wheth er the Board is hearing an appeal or a request for a variance there must always be findings of facts for every decision. It’s important that the findings of facts be made clear and made part of the record in case of a certiorari appeal in which case the judge makes a decision looking only at the records of the hearing. Board of Appeals Minutes 2 December 16, 2009 Mr. Wilusz asked if a decision of the Board was appealed, would the judge use board decisions of similar past hearings in his/her review. Mr. Praska answered 99.9% of the time records of other hearings do NOT come into play. Mr. Penney asked if the Board should give findings of facts for every decision (both approvals and denials). Mr. Praska replied yes and added that every member that votes in the majority has to agree with ALL the f indings of facts. Ms. Hentz commented that in past, the Board hasn’t stated findings of facts in decisions of denial due to the fact that the prepared staff report indicates why the variance/appeal should be denied. Ms. Lorenson expressed the Board may adopt what is outlined in the staff report; however it must be stated in terms of findings of facts. Ms. Lorenson talked about the Boards authority as it pertains to granting variances. Variances are exceptions to the general ordinance standards. Variances should preserve the local standards and ordinances and are meant to balance both the public interest and the property owner’s interest in very specific cases where compliance with the general ordinance standards would cause an unnecessary hardship. V ariances may be granted when it’s not contrary to the public’s interest, there are unique property limitations, and/or there is unnecessary hardship. When granting a variance the spirit of the ordinance should be observed. Unique property limitations means physical limitations of the property, i.e. steep slopes, wetlands. Limitations cannot be unique to the property owner; they must be unique to the property. Limitations that prevent ordinance compliance that are common to a number of properties should be addressed by an ordinance amendment, not variances. For the public interest “test” the variance should not harm the public interest and it is not required to advance the public interest. The effect of the variance on the community as a whole should be considered, not the property owner or the property owner’s clientele. Mr. Carpenter asked Ms. Lorenson how the ADA (Americans with Disabilities Act) figures into variances the Board is asked to grant regarding higher fences, ramps, etc. Mr. Praska stated the City is required to make reasonable accommodations. The variance runs with the property, not the person requesting the variance. Once the property is sold and the previous owners move on, the variance stays with the property. Mr. Carpenter inquired if the Board could grant a variance request contingent upon property ownership. Mr. Praska and Ms. Lorenson replied no, once the variance is granted, it stays with the property. Ms. Lorenson clarified the Board doesn’t have to deny a ll request s for a variance, but should look at each individual case and determine if it is necessary. The Board is not required to grant variances. Mr. Cornell asked whether or not the Board should be making sympathy decisions. Mr. Praska replied no. Ms. Hentz made t he argument if a handicapped person cannot get into his/her property he/she wouldn’t have reasonable use of the property which is a reason to approve a variance. The Board discussed after the fact permits and how they put the Board in a bad position. Mr. Penney inquired if requested to grant an after the fact variance, should the Board totally disregard the actuality that it is indeed after the fact. Ms. Lorenson answered yes, and the argument almost always made in after the fact variance requests is that there will be a financial hardship to the property owner if the variance is not granted. Financial hardships are irrelevant. Board of Appeals Minutes 3 December 16, 2009 Past variances granted by the Board were brought up and discussed. Ms. Lorenson stated that although neighbors might not obj ect to a variance request that is NOT grounds to approve a variance. Variance requests must be harmonious to the community. She went on to say that the courts have specifically said the fact that there are objections or there are no objections is not a reason to grant a variance. As they were running short on time, Ms. Lorenson wanted to inform the Board that on site group visits must be noticed as an open meeting. Alone or in a group, the Board must get permission to step onto a property or it is consi dered trespassing. If the Board goes as a group the public is allowed to go along, if a board member visits a site individually it should be disclosed at the hearing. She also reminded the Board the there should be no ex parte communication with the property owner. Mr. Penney asked if a member does a drive by of a property should it be declared at the meeting. Ms. Lorenson replied yes because anything a member uses in consideration of a variance must be included in the record of the meeting. Ms. Cryan, inquired whether board members should do site visits for all variance requests. The Board concluded site visits are sometimes valuable tools but not necessary for each board member. Some are long time residents and more familiar with the City. Also, the City staff does a great job regarding detailed staff reports. Mr. Praska reminded the Board that they play a quasi-judicial role and likened them to the court system in that there are two sides to a variance request. It is ultimately up to the applic ant and City staff to tell the Board what they think the Board should know. The Board’s duty is to take the information they’ve been given and make a decision. The Board is not the investigator. The remaining topic Ms. Lorenson wanted to discuss was j udicial appeals. If there is an appeal o f a variance request the Board must provide certified copies of everything the Board looked at, everything that was presented at the hearing, including audio tapes and minutes so the court can decide if the Board ap plied the proper standards in making their decision. Ms. Cryan asked Ms. Lorenson and Mr. Praska if board members could be sued personally if a citizen appealed a decision. Ms. Lorenson and Mr. Praska replied no. If a board member was named personally i n a lawsuit regarding a Board of Appeals decision, he/she would be granted immunity, be dismissed and the City would be replaced as the defendant. DISCUSSION OF BOA PROCEDURES The Board still needs to discuss with city attorneys the Board of Appeals Proce dures and Regulations. It was decided the city attorneys would come to January meeting to answer questions from the Board. Ms. Hentz suggested the Board remove from page two under Article Three Number 5 where it states in red “to approve a variance” as the Board now knows that there should be finding of facts for both approvals and denials. Mr. Wilusz suggested the fact that board members cannot talk to applicants regarding their variance requests prior to their hearings be incorporated into the procedures and regulations manual. There being no further business, the meeting adjourned at 4:55 p.m. (Hentz/Carpenter). Respectfully submitted, Todd Muehrer Associate Planner/Zoning Administrator Board of Appeals Minutes 4 December 16, 2009