MINUTES OF THE INFORMAL MEETING OF THE JOHNSON COUNTY BOARD OF SUPERVISORS:
APRIL 15, 2009
Chairperson Neuzil called the Johnson County Board of Supervisors to order in the Johnson County Administration Building at 9:00 a.m. Members present were: Pat Harney, Larry Meyers, Terrence Neuzil, Sally Stutsman, and Rod Sullivan.
Planning and Zoning Administrator Rick Dvorak said when the County amended their Unified Development Ordinance in 2006 they added a provision for child care and daycare centers. The trigger is hours of the day and how many children are being taken care of. Anything prior to that was exempt. The County has not had an application for a daycare center. Dvorak said he was contacted by Kathy Swenka who explained in writing her facility would have eight children, be licensed by the State of Iowa, and had operated a facility previously. Dvorak said as it would be located in the rural area, the ordinance says it is permitted in an agricultural use. He told her a Conditional Use Permit would be required for a home business. Since the ordinance does not allow it the facility may have fallen under another use, but he gave her the opportunity to get the home business permit.
Dvorak said he and Assistant Planning and Zoning Administrator R.J. Moore were invited to a meeting by Social Services Coordinator Amy Correia to discuss this with her staff and care providers. He checked with Linn and Scott Counties to see their requirements. Linn County is more restrictive, only allowing them in the village zoning classes and requires a permit. Scott County uses a special use permit in specific uses. Dvorak said in the City of Iowa City’s residential districts, if the person meets their requirements and follows State guidelines they are allowed without a special use permit. Dvorak said the County’s concerns are different than Iowa City’s concerns. The County has a rural water supply, private wells, and private sewer systems which can be impacted by additional people. He said the dust control and adding winter road maintenance, especially on gravel roads, are also concerns. Dvorak said Swenka's house is on a bus route that receives better maintenance. He said reviewing these issues Planning and Zoning believed it should have a Conditional Use Permit.
Correia provided a map of child care homes registered with the Department of Human Services (DHS) in Johnson County in the urban and rural areas. She said in home care providers above a certain number of children are required to register with DHS. There is a background check, a child abuse registry check, requirements for CPR and first aid, and professional development requirements over a two year period. Stutsman asked if water is checked in the unincorporated area. Correia said yes. She said that Social Worker II An Fevold visits the applicant to become a child care home to ensure the County has quality homes even though it is not a State requirement. Correia said Fevold goes through the DHS check list of requirements for any new applicant. This ensures the applicants know what the requirements are because they are lengthy.
Correia said Iowa City’s ordinance defines a child care home as day care that is accessory to household living, provides less than 24 hours per day care, and supervision in a residence for a maximum of 16 children at any one time. Correia said that follows the DHS licensing requirements. A daycare can be registered at an A, B, or C level. She said the C level is a maximum of 16 children and requires another worker. If that home is in compliance with the DHS regulations, they are in compliance with the use as part of Iowa City’s zoning code. Correia said if there are concerns in a neighborhood about a child care home, Iowa City looks to see if the home is registered. If the home is out of compliance with the registry, DHS ensures compliance.
Sullivan asked if the information provided comes from the State. Correia said yes. Sullivan asked if Iowa City updates their code as DHS changes regulations. Correia said she was not sure, but could follow up. Stutsman said there is no reference to following DHS guidelines. Sullivan said it would be easier to reference that so when a change is made it is automatically incorporated. Meyers said a small difference is the County specifies seven children while DHS specifies eight. Correia said up to eight is the A registry. Sullivan said if the County moves forward they should link it.
Neuzil asked Dvorak why the County has this policy in place. Dvorak said the State handles the safety issue. Iowa City does not have to worry about the impact of road conditions on gravel roads in the winter and spring. He said the County is concerned with the safety of people traveling in and out of an area, especially on a 4080 trip count road when the business adds two trips for each of eight kids onto the road per day. The County’s concern is to ensure they can provide these services. If there is a demand on services, the County wants to know up front and is made aware of it during the Conditional Use Permit process. Every Conditional Use Permit the County issues is reviewed by the Sheriff’s Office, Secondary Roads, and Public Health. He said today, the question is less about the Conditional Use Permit process, but some of the potential requirements. Secondary Roads might require dust alleviation to protect neighbors from additional dust on a road that was not designed to carry lots of traffic. Dvorak said Planning and Zoning tries to forewarn any resident interested in a Conditional Use Permit that there are additional items that may be required. He said the Building Division would conduct an inspection.
Swenka said there is currently a bill on the House floor for licensing all in home child care. If the bill passes, all in home child care facilities will need to have a State Fire Marshall inspection. She is in the process of doing a national accreditation program which also requires a State fire inspection. Swenka said there is also a C-1 class provider that allows for eight children, which would be her classification. Dvorak said Planning and Zoning can revise the Ordinance if the Board desires. The Board could allow a facility without a Conditional Use Permit in specific districts for eight children or less. When that number is exceeded, other communities shift to a commercial class rather than a residential district class that is better designed for care. Dvorak said if the Board is inclined to reduce the County’s responsibility, he hopes they do not choose to exempt all facilities in their districts. He has not found any community that allows eight or more in the agricultural district.
Stutsman said she supports child care in ag areas, especially with eight or less children. There is not much back and forth traffic so she does not think traffic and dust control are large issues. She thinks people using the facility would be from the area so they would have experience driving these roads. Stutsman said maintenance would be the same as all people in the unincorporated area face, which users must understand. It would be the parents’ choice to use this facility or not. She thinks the Board has a responsibility to provide quality child care in the unincorporated areas and should do everything possible to support that. Stutsman said Iowa has the largest percentage of families needing child care in the nation. There are more and more two income families working off the farm in the unincorporated areas, so the Board needs to make quality child care accessible and has a responsibility to work it out.
Sullivan said he likes the idea of linking the County to what DHS is doing. It puts Planning and Zoning in a tough spot trying to interpret things that are not their area of expertise. The Board could link to the DHS standards, saying if an applicant meets those standards they are automatically granted a Conditional Use Permit. Stutsman said the County has Fevold who has expertise in child care. Even if no other county in the State allows child care in the ag area, she wants to be the first. Sullivan said many counties have not dealt with this issue because many counties do not have any zoning. Dvorak said the County had not dealt with it until 2006. Harney thinks the Board needs to provide child care in rural areas. His concern is the County uses traffic counts as criteria for building, so it may increase those numbers to the point where someone cannot build on that road as a result. He asked how to adjust to regulate that. He said he does not want to duplicate State and DHS requirements that are already in place. Safety is the utmost importance and most facilities meet that requirement through the State. He believes the Board can make some adjustments.
Meyers said building permits for homes are not allowed if the traffic count is near the maximum level. He agreed with Harney in questioning how to proceed if a home operated business pushed it over the line. Dvorak said the dust alleviation plan requires the County has to provide road maintenance if there are over 150 vehicles a day on the road. He confirmed the majority of the Board is interested in making amendments to comply with State requirements, exempting facilities providing they meet those requirements. Sullivan asked if residents would still get a Conditional Use Permit that would be automatically granted or there would not be a permit required. Dvorak said he would suggest a process like Iowa City who does not require a permit. The home facilities would be a permitted use in the A districts and the R districts. Harney said the County needs a designation where it requires a commercial permit. Neuzil said it would be nine or more according to Iowa City’s standards. Swenka said no because a home can have 16 children if there are two caregivers. The large child care centers have a different set of licensing rules through DHS, which require them to contact Planning and Zoning. She said child care homes require the person providing the care to live in that home. Neuzil said the Board is willing to allow eight or less while nine or more would fall into a different category. Dvorak said he will work with Correia on the definitions.
Neuzil said the Board seems willing to change the Ordinance for eight children or less. That means it goes through the Planning and Zoning Commission and the public hearing process. He said he is not sure nine or more should be exempt because it falls into another business category and should require additional oversight Stutsman said the difference is between a home daycare versus a center. Swenka said if a home is a C-2 provider with 16 children in the home, there are probably only eight or nine families using the service because most bring more than one child. Many families choose in home child care because it keeps the children together. Swenka suggested providers could register with the County or fire department to let them know the programs exist and how many children are present. She is willing to work with the rural providers as well. Stutsman said that is a good idea so first responders know.
Swenka said the Ordinance talks about home businesses and home occupation, which is number 91. It states if the business is carried on by an immediate member of the family, there are no employees, and the business does not change the outside structure of the residence in any manor, then home occupation is automatically accepted in the agriculture area. She does not see where home child care does not comply. Swenka said Page 22 of the Ordinance also says home occupation is allowed in the agricultural areas. The Residential section of the Ordinance addresses child care, but it is not in Ag or Ag residential districts. She did not know if it was permitted or excluded because it was not addressed. She thought the home business versus home occupation is something the public wants clarified because many farmers have small in home businesses because the family farm can no longer sustain them.
Dvorak said the Ordinance requires a Conditional Use Permit in the residential districts for home care. The rural area under ag did not require it so it was his interpretation that as it was required in the residential district it is more than the anticipated Ordinance was for home occupation. He felt in helping Swenka through the process there would be less confusion if they applied for the home business, notified the neighbors, and notified the County departments. He said she could have argued his interpretation with the Board of Adjustment and called it a home occupation. He thinks that discussion has move on given the Board’s discussion.
Dvorak said as the Board indicated they will amend the ordinance using State Code and Iowa City as a reference. He asked the Board if they want the County to monitor them like Iowa City does or any additional requirements. For example if someone requests a daycare center for six children that meet the State requirements, does he just say yes or do they have to file a report with Planning and Zoning for monitoring compliance. Stutsman said monitoring can be done through Fevold working with Correia. Dvorak asked if the Boards wants an annual permit to monitor homes or to exempt them.
Meyers said if DHS is monitoring them on a regular basis he does not think the County needs to. Stutsman said Planning and Zoning should speak with Correia to ensure there is not duplication. Neuzil reiterated his concern allowing more than nine children because the purpose of the Conditional Use Permit is to protect neighbors when people set up a business without rezoning to commercial. He does not want to get away from those rules when the facility becomes a business. Dvorak said he has clear direction. Busy Bees Daycare and Pre School Owner Amy Pitlick said she does not know if the Board can set the number at eight unless it is specified as full time. When children come home on the buses many get dropped off at 4:00 p.m. and picked up at 5:15 p.m. Those kids only need that hour, but there may be 12 to 14 children when the parents arrive. She asked the Board to consider after school care.
Neuzil said after a certain number of kids it becomes a business rather than something on the side. Pitlick said Clear Creek only has two places that offer after school care. In Tiffin only Graceland and her center offer after school care because the school does not offer anything. She said the majority of the young children live in that area so there is no other choice than to wait at someone’s home. Pitlick said these homes are not trying to run a commercial business, but people know they take care of children so they are asked to take care of children for an hour and a half of after school care. As it is a rural area, residents do not have a choice because children cannot be bused into Iowa City from Oxford for that time period. Neuzil asked if under those circumstances businesses fall under a different category with a different set of criteria. Swenka said it would be a Category B home that is allowed eight children maximum with six full time and two part time. If the home has an assistant at least 14 year old, they have four before and after school children for no more than two hours in the morning and afternoon each. Swenka said B homes tend to be on bus routes so they are picked up and dropped off at the home. Many times those children are siblings of children in fulltime care. Neuzil said the County has to make it clear when they change the Ordinance. Stutsman said that follows DHS guidelines. Swenka said these are all DHS guidelines which specifically state how many children can be at each category home. The C-2 provider can have 16 children and eight in a C-1 home.
Neuzil said this was not set up to discourage businesses, but to protect the County’s interest. The staff is making sure the right people are involved. He said the public says the Board does not care about kids or the rural community, but the Board wants to make sure there are check points in place.
Swenka said the caregivers in her area were brought into it by families who needed services desperately. These are families living in the communities. She reiterated she would like to have the Board clarify the difference between a home business and a home occupation. Dvorak said unless he gets specific requests he cannot answer a general question. Swenka asked as an example if a neighbor selling Pampered Chef or Avon would have to come to the County. Under this Ordinance in 8.16 for an ag area, it says home occupation is allowed with an exact description of what that is so how as rural residents should they interpret it. She asked if residents have to go to Planning and Zoning with every question. Dvorak said yes. Stutsman said childcare has been addressed.
Swenka said she is addressing the difference between the two. Home occupation is defined saying it has to be done by a family member, no employees, and it is not to change the outside structure or residence in any manor. In the ag areas it says it is permitted so residents do not need to contact Planning and Zoning. Dvorak said if there is a borderline question he asks a person to provide the details in writing. Then if the business goes beyond that, they have to get permits. He said he cannot go through every example without having that kind of specific information. Stutsman said the Board has delegated that to Planning and Zoning. Sullivan said there are many people in the ag districts that sell things like Avon and Tupperware without having any difficulty. Dvorak said computer business are popular now, but the only time there is a problem is when trucks arrive and neighbors complain, but then it has become a different kind of business. Each decision is based off of the information submitted.
Neuzil said Swenka wants more information on specifics on what it includes, but there are too many examples to list. Swenka said she is not asking for a list, but when residents read the Ordinance she wants them to be able to understand it. Residents do not want to feel they are thoroughly governed to make any decision regarding their land, farm, or property. She wants to know if she stays within the guidelines, she does not need to contact the County, but if her business changes and goes beyond the guidelines she knows she does. That is what residents are asking for. Swenka said in the ag section of the Ordinance, specifics were given as to what was allowed, but also listed uses requiring Conditional Use Permits. That is where residents want clarification on what is allowed and then they will address Conditional Use Permits. Dvorak said until there is a specific question they can’t answer it in this setting. Harney said there are so many different applications that cannot be addressed together. People go to Planning and Zoning to make the determination on an individual basis.
Neuzil asked how Swenka would like to word it. Swenka said she does not think the wording needs to be changed, but she thinks residents need to understand the difference between the two. Home occupation in the Ordinance states residents do not need to contact Planning and Zoning if operating a small home occupied business. She said if the business switches to something with more traffic and employees, then it requires a Conditional Use Permit. Residents want clarification on the difference between the two because one is permitted and one requires Planning and Zoning. Dvorak agreed. If someone is going to open a business, they should call the office to ask if they need a permit. Stutsman said there is a process. If Planning and Zoning makes a determination, an appeal can go to the Board of Adjustment. She said she is comfortable with that process. If there are questions, people should call Planning and Zoning.
Sullivan said this Ordinance is in place to protect ag operations. The idea is people farming in the unincorporated area do not need someone next door interfering with their ability to make a living. There is only so much land to farm and it needs protection. Sullivan said this is a based on a complaint basis so residents should call the County if they are concerned. Anything beyond farming in an ag area should be considered because that is the point of the rural area. Swenka said those residents also want the rural areas to survive, which in today’s economy requires working outside of farming to sustain the farm. The farmers need additional income, whether as an in-home business or working in town. Stutsman said residents can do that. Swenka said when the question arose she and her attorney thought she was safe under the description of home occupation in the Ordinance. Then she found out she was not, which creates the interpretation issue. She would like clarification because there is nothing saying residents have to apply for a Conditional User Permit to operate a home business. She said people have to look for the Ordinance as an agricultural resident to understand it is required. Neuzil said that is what the policy is. Swenka said when a resident moves into the County, they should be given the Ordinance to understand what the policy is so they can research it for themselves. Neuzil said he believes the information is on the internet. Stutsman said most people do not want it. Dvorak said the person starting the business has the responsibility to ask.
Neuzil said the Board is not discouraging additional incomes for farm families. Swenka said she asked if farmers selling things who are not creating traffic and do not have employees all have exemptions or if they require permits. Stutsman said Dvorak is available to answer these questions. Neuzil said is does not sound like Swenka wants to change any of the language. Swenka said she is asking as residents to read the language and make their own decisions. If residents feel they need to contact the County, then they will. Sullivan said that is how it is now but residents run the risk of reading it differently than Planning and Zoning. He said his advice is to call Planning and Zoning before starting a business. Swenka said there are a lot of established businesses in their area. Sullivan said everyone should check with Planning and Zoning. Meyers said the County is not running patrols, but if there are complaints to Planning and Zoning, they will look into it.
Johnson County Fair Board Member Norman Ziskovsky said a special events section in the Ordinance often pertains to him as a member of the Johnson County Fair Board to have events. The Fair Board has 200 events per year at the Johnson County Fairgrounds, which is listed as Commercial Agricultural (C-AG) district. In the Ordinance, each event is an individual event. Ziskovsky said also as President of the Cattleman's Association he cooks at 50 events throughout the year. According to his reading of the Ordinance, it requires a Conditional Use Permit for each of these events. Ziskovsky said if he has to call the Board of Adjustments, apply for a $250 permit, and invite an environmental engineer to inspect the farm every time, the event will not happen. He said that bothers him in reading the Ordinance because the vagueness opens an interpretation issue. He asked if he is asked to cook at a graduation party does he have to notify Planning and Zoning ten days in advance and if the neighbors do not agree, can they veto the party.
Assistant Planning and Zoning Administrator R.J. Moore said Ziskovsky does not have an understanding of the Ordinance. Anything that happens at the Fairgrounds is exempt because they created the zoning district for it. The Code of Iowa dictates the zoning process, requiring a zoning administrator. To keep the zoning administrator in line the Board appoints a Board of Adjustment to review his decisions. He said Planning and Zoning has told the public, for example, if a resident holds a gradation party at their house, it is a normal use of property. If the Cattleman's Association cooks, it is a normal residential use of the property. Moore said if someone holds a concert on their farm where it is open to the public, they charge admittance, and obtain alcohol permits, then they are subject to Conditional Use Permits.
Harney said cooking at a one day event is normal usage. It is when a business operation takes place that a permit is needed. Ziskovsky said the document includes one time events under special events in Conditional Uses Permits. Harney said the Ordinance means the commercial side rather than home use. Moore said that is where interpretation does come in. Dvorak said the property owner would be the permit applicant, not the caterer, but that is a moot point. When the Ordinance was adopted the County knew there would be questions. Dvorak said like many laws, events are specified as requiring a permit. However, it leaves some opening for interpretation, but all ordinances do because an exhaustive list cannot be included. Dvorak said he received complaints about a business that held an event once a year. He spent a day trying to make an interpretation by looking through the property. He said he determined a permit was required so the business applies for one every year. Dvorak said the County has never shut a business down in the middle of an operation. Planning and Zoning tells the owner the process to apply for a Conditional Use Permit and to appeal, if needed. He said the County has never filed charges against anyone. Dvorak said Dick Schwab held events at his home for many years until it became a nuisance to the neighbors with 300 to 600 cars traveling on the gravel road. Schwab went through the process for a Conditional Use Permit, still operating under, but under conditions. Stutsman said when the neighbors call Planning and Zoning, they can tell them.
Ziskovsky said the interpretation will differ as Planning and Zoning staff or Supervisors are replaced. Moore said that is possible, but most staff are trained and educated as planning and zoning administrators so their background has thought them how to interpret ordinances. As a result, the interpretations are usually consistent. Harney said the County cannot make everything black or white. It is the intent of the law and regulation. Swenka agreed but said she contacted other counties and cities within Johnson County to see their ordinances. In Iowa City, Scott County, Black Hawk County, Linn County, and Polk County a resident is allowed to have parties on their residence. Swenka said the counties do not have an ordinance that requires a person living in an ag district to obtain a Conditional Use Permit for special events, which the Ordinance does. She said it is left to heavy interpretation so residents feel their civil liberties are taken away, because they cannot do anything on their properties without calling Planning and Zoning. Stutsman said that is accurate.
Swenka said a resident who held an annual event that she did not charge for was no different than a graduation or anniversary party. Swenka said that resident had to go through the Board of Adjustments to have the party. She said as residents, they do not want to go through those steps to continue living in the heritage and culture they always have. Sullivan said Swenka needs to understand the Board is trying to protect that. Swenka said while the Board is trying to protect it, they are trying to take their culture away that has existed for hundreds of years. Sullivan said there is one person that went to the Board of Adjustment because of a dispute and she won, which shows the process works. Swenka said the process may have worked, but the resident had to go through the process. Prior to the rural neighborhoods becoming aware of her case, no one would have considered calling Planning and Zoning to see if they needed a permit for a party. She said they would not have called to see if they could continue selling eggs or do hair for the neighbors down the road like they have for decades. Swenka said that is changing the culture of the neighborhood. She said the neighbors are upset in the rural area because they feel that they have no rights on their property and they always have to contact the County to do what has always been done. Swenka said she does not think the Board understands how residents feel.
Harney said the Board does understand. There is a similar issue north of Solon where a resident holds an antique show every year. He said the Sheriff and neighbors complain about the cars, noise, and activities. Somewhere the County needs a regulation to use good judgment with. Swenka said she can understand that because there have been graduation parties in their area that have gotten out of control that the Sheriff's Department has handled. Stutsman said graduation parties are allowed. Swenka said the way the Ordinance reads, they are not. Neuzil said he does not want a situation where it says graduation parties are exempt because then a person can have bands, kegs, and sell things saying it was a graduation party. That is why it is not specified because the County does not want that situation. With the system now, residents can have a graduation party. Dvorak said after the Board of Adjustment made their decision, he got a call from a farmer who said now that farms are exempt in having parties, he is going to have a corn festival with 2,000 kids and provide alcohol. The farmer asked if Planning and Zoning could stop him. Dvorak told the farmer no.
Harney said similar to the parties, the seed corn companies have field days with displays and food. The County does not require a permit because it is an ag related activity. Swenka said this is the current Board’s opinion on how this ordinance reads, but if the membership changes the wording allows a different interpretation. Sullivan said the public would need to vote Supervisors off the Board. Neuzil said that happens every election because American government is set up to interpret the laws. He asked how the public would like to see the wording change. If there is a way to word the Ordinance that would make residents more comfortable he would like to know. Pitlick said graduation parties or birthday parties are a normal home use. Neuzil said in law the word normal should not be used. Pitlick said if residents are charging for a keg it is not something residents approve of. Swenka said those residents deserve to pay the Conditional Use Permit and get the necessary parties involved. Ziskovsky said there is a boot-legging law if residents sell the alcohol.
Neuzil said there are ways around selling alcohol by saying things like it costs $10 to see the band, but the beer is free. Sullivan said Swenka said Iowa City does not have the ordinance, but residents are supposed to get a permit. Every weekend the Iowa City Police break up parties on a complaint base and give tickets to residents for violating the laws. Swenka said there have been parties in her neighborhood that the Sheriff's Department dealt with. She said the normal parties do not create a problem. In some way residents can work with the County to find some wording that would be fair to the community. Sullivan welcomed her to present resident’s suggestions, but they need to be careful what they ask for because they will not get what they want when trying to define this. He said it cannot be done. Harney said there is always going to be an exception.
Neuzil said it is important to know that the Fairgrounds and graduation parties are exempt. Swenka said it does not state the Fairgrounds is exempt. Neuzil said it does under the Zoning Ordinance. Moore said the Fairgrounds’ has its own zoning classification. Sullivan said the top of Page 44 includes the Fairgrounds as number one under permitted uses. Swenka said Page 45 lists special events under conditional uses. Sullivan said because the Fairgrounds is listed as permitted it is exempt. Swenka clarified everything the Fairgrounds does is permitted then because of that statement. Dvorak said on Page 10 it gives a definition of a fairground and says what is exempt. Neuzil said residents have a right to clarify these things. Ziskovsky said the Fairgrounds holds many different types of events that are not listed on Page 10. Neuzil said according to the Fairgrounds’ current zoning, the events are exempt.
Moore said when he first started, the Fairgrounds held a spring camper rally and got a Conditional Use Permit each year. The County created the C-AG district and amended the Ordinance in 2004 to exempt the Fairgrounds from having to do a Conditional Use Permit for things that should be a permitted use for fairgrounds. Moore said in 2004 the Ordinance was made to be more receptive and flexible for home businesses and provided a better understanding of the zoning districts. He said the County cannot make everything black and white. Harney said that is part of the reason the Board of Adjustment is set up. Stutsman said child care needs to be clarified so the Board is reviewing it. Sullivan said there was a controversial situation with a compost facility. Although the County could not change that situation it created a zoning district for future landfills.
Swenka asked if, as stated on Page 71 on the seventh point of the Conditional Use Permit, a business is grandfathered in if they were in existence prior to the implementation of the Ordinance. Dvorak said that is correct and the effective date was January 5, 2005. Sullivan said someone doing something prior to 2005 is exempt. Moore said as soon as the business changes they have to comply. The change was why Planning and Zoning felt Swenka should apply as a home business. Neuzil said that is how staff has interpreted it, so the process is to go before the Board of Adjustment if there is a disagreement, which avoids the politics. Swenka asked if there are setbacks for agricultural property. Moore said not on a farm. Stutsman said if the property is more than 40 acres. Swenka confirmed a person can build up to their fence line. Moore said yes. Swenka said in her situation with Planning and Zoning, she had not changed her business. She had started a room addition prior to the adoption to the Ordinance and Planning and Zoning was aware of it. Her business change went down, from 12 children to eight.
Swenka said had Planning and Zoning taken the time to talk to her about her business, they would have understood that. When she tried to bring up the issues with the Ordinance and ask questions, they were not addressed. Stutsman asked if Swenka has anything else for Planning and Zoning. Swenka said she is concerned because she thinks she was treated unfairly and it should not have had to go to this extent. Questions like what her business entails, when it began, when it ended, etcetera should be asked of small home business, because it will make it easier for the person taking these steps. Then residents would feel like they are being heard. Dvorak said he will share correspondence with Swenka with the Board.
Ziskovsky clarified whether a group he cooks for will have to file for a Condition Use Permit. Stutsman said it is wise to call. Ziskovsky said he has to contact Public Health for every event, but asked if the group is supposed to call. They are not going to file a $250 permit to have their event. Sullivan said the group will probably be told it is not needed, but to be safe they should call. Sullivan said the odds are very good it is not necessary. Stutsman said the Board cannot stress enough the rules are not to punish or take civil liberties away, but are in place for protection. She lives in the unincorporated area and wants this protection. Residents in Iowa County, which has no zoning, have no protection from a shooting range currently being sited there.
Ziskovsky asked if he is required to inform the group they must call the County. Stutsman said it would be a courtesy. Ziskovsky said if he is cooking for a fundraiser and three fifths of the neighbors complain, will the County shut them down until they get the permit. Sullivan said the County has never shut an event down, but would tell the resident if they hold the event again, they would need a permit. Dvorak said that has been County policy since day one. Harney said he understands Ziskovsky is trying to protect himself, but the Board is trying to protect the overall quality of the ag area. Neuzil said the County does not want cars sitting on the side of the road or inadequate bathrooms, which need to be considered in having a large event.
Jim Dane said there is a perception problem with the Ordinance. When he first learned about it he was nervous about his activities before he was assured that ag items are exempt. Dane said when a person hears an ordinance designed to be checked an individual gets concerned something they have always done might not be right anymore. Residents are reluctant to expose themselves. Dane said the Ordinance is there to protect residents, not to limit their civil liberties, but reiterated there is a perception problem. He said County residents need to know these ordinances are in place for health, protection and are not necessarily written in stone. Sullivan agreed, saying this is a place the Farm Bureau could help by sending information out. Dane said now that he understands the Ordinance better, that is a possibility. Stutsman suggested an article in The Spokesman about what the Ordinance is would be a place to start. Dane suggested an article in the County Roadways newsletter. He said the typical reaction is not to do something that may stop something that has been done previously. Stutsman said this discussion is good to clarify issues.
Neuzil asked if the Board changes its policies and potentially ordinances whether the Board of Adjustment has the final say. Dvorak said the Board of Adjustment does not have say over amendments made, but does interpret them. Neuzil said in the end it is in their hands, because that is the way it was set up. Dane said it is an intimidating process, working with staff and then the five individuals on the Board of Adjustment. Neuzil said using the Roadways newsletter, The Spokesman, and the County Fair for publication sounds fantastic. In the last week alone he heard the Board is against ag uses twice. Dane said it is a new ordinance. It is taking a while to inform people and for the public to understand the purpose. Moore said as the economy heads south the County is going to face more concerns and issues about businesses moving into the rural area. He said Planning and Zoning had landscapers and electrical contractors that have moved to the rural area because people think it is cheaper and easier to run a business in the rural area.
Moore said people forget although Planning and Zoning interprets issues, there is a process for appealing those decisions. Planning and Zoning generally takes a conservative approach because they know the importance of how they interpret the Ordinances. Moore said the purpose of the Conditional Use Permits is not only to protect the people holding the event, but the surrounding property owners. Sullivan said the County is also seeing unique things in terms of ag because the common corn, soy beans, and hogs concept is changing. He said the County is going to have to have to consider what agriculture is. Stutsman said more people are also moving into the unincorporated area, which is also changing the normal understanding. Moore agreed the Ordinance is new. He said in his time in Planning and Zoning it changed from a good old boys administration to a professional staff and has a Board that is pro land use. There are changes coming, but so is the culture and environment. The Board will have to deal with the change in agriculture from the traditional corn and beans for community supported ag users and organic growers. Dane thanked the Board and staff on behalf of the Farm Bureau for keeping agriculture primary. He thinks it is tradition, and part of their values and way of life.
Jan Herin said she has been through the Conditional Use Permit many times in the last four years. A well written ordinance does not need interpretation. She said it should stand on its own, with an understanding there will be corner cases, but should be written so interpretation is not required. Herin said she is now a neighbor to a 125,000 ton composting facility because of an interpretation. She knows the County fixed the ordinances after that, but there was additional interpretation needed to determine if use had been established. The ordinance appeared clear as written, requiring either a building permit to have been obtained or the activity done to be permitted. Yet it was still interpreted as use was established. She said the Department of Natural Resources (DNR) has denied the permit for the facility so now there is an established use with no permit and no activity. The situation was stagnated by interpretation.
Dvorak said the courts upheld the interpretation five different times. Harney asked if there is a deadline where the permit expires if they have not moved forward. Dvorak said when the State Appellate Court heard the case all their permits were in order, but as of today he does not know where it is. Herin said the company had one permit in order, which no longer is. Dvorak said the courts have decided the matter. Sullivan said if the Code or DNR changes their regulations, permits may need to be reapplied for. He said it would then fall under the new zoning classification. Dvorak said if someone came in today, they would have to go through the rezoning process.
Ziskovsky clarified the grandfather rule states if a person discontinues an activity for a year, that person must reapply for the permit. He asked if the compost factory would have to reapply, because they have not had any activities. Dvorak said he will not talk about a court case that may still be appealed. Neuzil said it could be clarified through the County Attorney's Office. He said, to confirm, Planning and Zoning will develop a proposed change for the child care issue, and work with Correia, State officials, and Swenka to develop language to bring before the Planning and Zoning Commission for the public hearing process. Planning and Zoning will work out the timing with the Auditor's Office and bring it back to the Board. Neuzil encouraged residents to work with Planning and Zoning to develop language for the Ordinance that may help make it clear.
Adjourned at 10:34 a.m.
By Jessica Hulen, Recording Secretary