Interpretation of ordinance creates snag over precedence

When looking at zoning, ordinances and policy-making can be a bit of a beast. Townships, cities, and counties have ordinances in place for the benefit of property owners and to keep things decidedly black and white. But, what happens when interpretation creates a fuzzy, gray zone and the idea of entity precedence and property owner rights clash?

Five of the 23 townships within Fillmore County have their own zoning ordinance, more stringent than the county ordinances. This includes Chatfield, Forestville, Jordan, Spring Valley, and Sumner. Fillmore County Commissioner Duane Bakke indicates that anything not in the township ordinance falls to the county ordinance.

For Chatfield Township resident Josh Thompson, his first recollection of the process was a discussion with the township board in the late spring or early summer of 2016. Thompson and his family were considering the purchase of 7-8 acres of land on County Road 2 west of Chatfield, a half mile from city limits, for the purpose of constructing a new home. Everything outside of the city limits is zoned as an agricultural district. Per township ordinance, there can be only one dwelling per quarter of a quarter section in the ag district.

Prior to purchasing any land, Thompson discussed the issue with the board. “I never did a formal application,” he says. “I met with the board and looked at applying for a variance.” According to Thompson, township board member and head of township zoning Ross Goldsmith contacted him prior to the meeting. “He told me, ‘We’re not going to approve it.’ I shouldn’t waste my time.”

“I was only going to build if I was approved to build and I was trying to reach out to the township to see if I could make it work. I understand the spirit or intent of the zoning ordinance, but there was already more than one house per quarter quarter. All of the surrounding landowners were okay with it,” adds Thompson. Upon realizing the site would not be approved by the township, he considered two other options; a 40-acre parcel across the road and 20 acres in an adjacent township. The first he couldn’t afford. The other, had no suitable building site per pre-designated sections. “Where I was looking was the only buildable spot in that section.”

“There was no big confrontation and I felt we were clear cut on it,” says Township Board Member Forrest Hayden. “He had the option of going before township planning and zoning for variance, but was told his chances were pretty slim. It didn’t appear to be a hardship case. The quarter quarter was the problem.”

Ready to give up on the whole deal, Thompson discussed the matter informally with an acquaintance who is an attorney. It was suggested that Thompson look at getting the land rezoned by the county board. “Going to the county was my last ditch effort,” he says. Per county ordinance, if a property is within a half mile of a city, the county has the authority to rezone the land from an agricultural district to residential agriculture district. A similar project, adjacent to the site Thompson was hoping to purchase, had received approval to build, being the third dwelling within a quarter quarter.

Thompson contacted Fillmore County Zoning Administrator Cristal Adkins regarding possible rezoning in January of last year. Citing the county ordinance, and after receiving multiple confirmations that rezoning would likely be allowed, property owner Terence Yust applied for rezoning. “At that point, I still hadn’t purchased the land,” notes Thompson. “It was all contingent on rezoning and getting approval to build. The next month, March 15, Thompson went before the Fillmore County Planning and Zoning. Shortly after, he took his request to the County Board.

“If you’re trying to protect an agriculture district, building in the location of other dwellings is a good thing; is a cluster,” adds Bakke. “Our interpretation is they don’t have a prohibition on rezoning from agricultural to residential. We checked with the City of Chatfield and they had no issue with rezoning.”

“It’s something we’ve talked about with county, but we felt we were already in compliance. We felt there was no reason,” says Hayden in regards to a prohibition.

At the meeting, township officials Hayden and Lowell Meeker offered their comments regarding their own ordinance, requesting the land not be rezoned for fear of losing control of zoning. “We provided testimony for the public hearing and township supervisors talked against allowing it, but they rezoned it anyway. We felt our ordinance covered agricultural and residential. The county didn’t feel it applied.”

“I spoke to a few of the township board members after the meeting,” recalls Thompson. “They’d said they hoped there were no hard feelings.” Written documentation of the rezoning and the building permit were sent from the county to the township.

Later that month, Thompson officially purchased the land. “I had a building permit from the county. I was told it was fine.” By late May or early June, the driveway was in place and the building had commenced. In July, with the basement in and main floor framed up, Thompson received a Cease and Desist Order from Chatfield Township Board. Thompson spoke to an attorney, who verified with the county that based on the county rezoning and acquisition of a building permit, the project was green-lit because he was no longer in the ag district.

“He needed to get a township building permit,” clarifies Hayden of the justification for the order. “We didn’t feel as though the county had the right to tell him he didn’t need a permit. We have it in our ordinance that there’s a fee if someone goes ahead and starts construction without permit. We sent the order on the advice of our attorney.”

Thompson says was encouraged to disregard the order, as he had secured county approval and a building permit. After discussion with further legal counsel, Thompson says it was suggested that it would be in the best interest of all parties for him to apply for a variance, at a cost of $400. “I wanted to work with the township, to let them have some say so.” A public hearing was held in March 2018 for the variance. At their March meeting, the township planning and zoning recommended to deny the variance. Thompson says he was never told why it was denied.

At the April township board meeting, Thompson indicates he was prepared with research on similar case law to support his argument. “At the meeting, they asked me what it was worth to me,” says Thompson, who admits he felt bullied. “My thought was, ‘I’m not afraid to go to court, but it’s cheaper for me to just have it over with.” Thompson was charged $1,500 for proceeding with construction without securing a building permit from the township board and the variance ultimately approved.

“We wanted to put it behind us,” notes Hayden. “We felt we could go to court and there was probably a 50/50 shot we’d prevail, but it didn’t seem that spending more township residents’ money was worth it, especially if we could clean up ordinance so it didn’t happen again.” Both Hayden and Thompson acknowledge there was a lot of back and forth letters between the parties and attorneys. “It did drag out longer than anticipated. It’s not common, this particular issue,” adds Hayden.

“With attorney fees, I feel it wasted time and taxpayer money. I felt like I was doing the right thing,”  says Thompson. “I didn’t want any fights with it; wanted to move on. I never expected this. It’s been a complete headache, with the stress and anxiety,” he adds. “It’s all good; tied up. I paid the fine and the variance was approved. It’s over.”

“This hasn’t really got to do with one overriding the other; it’s what is allowed,” notes Bakke. “Once in a residential district, Chatfield Township no longer had jurisdiction. Our administrator will send people to their township first to get approvals. Sometimes they don’t get a formal approval or disapproval. Sometimes it’s just verbal. We don’t really know the intention.”

“Zoning is very hard to do. It’s interpretation,” points out Bakke. “We would like to make sure everything is approved by them [township].

“From my perspective, the county and township had different interpretations of the ordinances and zoning. I feel like I did the right things and took the right steps to get approval,” says Thompson. “This should have been an issue between the township and the county and I should have been left out of it. The difference in interpretations shouldn’t have been held over my head. But, the county wants to work with the township to make sure it can’t happen again.”

Another parcel, owned by Lee Novotny, also sits within Chatfield Township and has also been rezoned by the county in the same manner. A building permit for the site has been issued by the county. Bakke says he’s offered to talk with township representatives, to discuss the ordinances or rezoning. No meeting has been held yet, but discussion of a meeting is ongoing.

“The county has zoning and the township has a right to do its own zoning, but there’s a difference between what we’re allowing and what townships are allowing,” he adds, noting a desire for cooperative zoning.

“We want to clarify, they’ve been very open to working with us to change any misconceptions,” adds Hayden. “There was no intent to cause hardship. Josh got caught in the middle of all this.”

“I want to emphasize, we are not in a fight,” stresses Bakke. “We appreciate what they do. We need to figure out the best thing for everyone.”

“In hindsight, we can’t imagine it’s going to happen on a frequent basis, but the possibility is always there,” adds Hayden. “We may have to rethink part of that ordinance if we don’t want it to happen again. Something has to change.”