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Tower a lightning rod for controversy

Staff writer

Planning and zoning board members accused Administrator Doug Kjellin of procedural violations Monday in allowing construction of an emergency communications tower at the new jail, while a zoning consultant vigorously defended Kjellin’s action.

Ruth Herbel, a member of Marion’s Planning Commission, alleged Kjellin violated zoning regulations and state law when he modified a conditional use permit to approve the tower.

“The procedure for amending a conditional use permit,” Herbel said, “is the same as used for the original request, which requires a public hearing 20 days after a notice is published in the newspaper.”

Herbel said Kjellin canceled a July 24 public meeting of the Board of Zoning Appeals at which a variance for the tower would have been considered.

“I am really disappointed in how this request was handled, and that proper procedures were not followed but totally ignored,” Herbel said.

Herbel questioned the objectivity of zoning consultant David Yearout, who recommended Kjellin’s action.

“Since Mr. Yearout is a consultant to both the city and county, could there be some conflict of interest?” Herbel asked.

Council Member Todd Heitschmidt asked what procedure she would have preferred.

“There is a request for a variance on file at the city office,” Herbel said. “There has been a public meeting scheduled. We probably could go ahead and do that public meeting. It hasn’t been publicly acknowledged that it was canceled.”

Kjellin responded that he had sent a notification to the Marion County Record but that it had not been published.

“The Board of Zoning Appeals would make the recommendation to the council?” Heitschmidt asked.

“No,” Kjellin replied. “The Board of Zoning Appeals is a quasi-judicial branch and their decision is not overturnable by City Council. It would then go to District Court if it was going to be brought forward.”

Form flap

The council was considering a motion to approve a zoning appeal form offered by Kjellin when Board of Zoning Appeals Chairman Darvin Markley lodged a procedural objection.

“I don’t have a problem with a form like that,” Markley said, “but it does need to come to the board so we can adopt that under our bylaws. State statute requires it that way.”

City Attorney Susan Robson asked: “Could this just be a form to work on right now, not be adopted but at least be a place where they could start at, and then if you wanted to adopt it when you had a meeting later on you could make your changes or corrections?”

Markley replied: “I probably disagree with a lot of that stuff that’s on that form.”

“You do?” Olson responded. “My goodness, it looks to me like this is the information you need. Don’t you think that would be a good idea to have A, B, C, D, or have you even seen this?”

“I haven’t looked at it,” Markley said. “My point is it needs to go in front of the board as an adoption under a bylaw.”

Heitschmidt withdrew his motion to approve the form, and no action was taken.

Decision defense

Zoning consultant Yearout, who is employed as a consultant by both the city and the county, was called upon to explain the rationale supporting Kjellin’s decision about the tower.

Yearout said zoning regulations addressing communication towers don’t apply to the emergency communications tower.

“If you read all the conditions that are attached to that, it’s very clear in reading those that’s really geared to commercial communication towers, cell phone towers,” Yearout said. “It doesn’t talk about general radio towers at all, which leaves that open to interpretation.”

Yearout said since the issue was not granting exceptions to regulations but how to apply them, the question of the tower became an administrative one.

“By the terms of your regulations, that job falls to the zoning administrator,” Yearout said.

Marty Frederickson is the city’s zoning administrator. He reports to Kjellin.

“Doug, Marty, Susan and all of us talked about all of this,” Yearout said.

Olson asked: “Should Marty have been the administrator that made the decision?”

“I don’t know,” Yearout said. “Doug assumed that responsibility, if not as the city administrator, he did it on behalf of the zoning administrator.”

Kjellin added: “Your e-mail to me said Doug or zoning administrator could make that call. At this point, I’m one of those types for better or worse I’ll take the bull by the horns.”

Yearout continued: “We can debate until the cows come home whether everybody is right or wrong. That’s not the point. I know it’s got a lot of folks stirred up, but I’m comfortable with everything that’s happened up to this point in time.”

If someone files an appeal of the decision before the 30-day window closes Aug. 6, Yearout said, it will be important to closely follow procedures.

“If an appeal application is made, then everything stops until the hearing is held by the Board of Zoning Appeals,” he said.

Heitschmidt asked Yearout what considerations apply if there were an appeals hearing.

“It is the Board of Zoning Appeals’ job to separate the wheat from the chaff,” Yearout said. “They may decide that no, we want to interpret the language in the regulations to apply to all towers, even though it doesn’t say that.

“If they do, then their directive would be to overturn the decision by the zoning administrator.”

A decision to overturn could send the matter back to the planning commission, or the county could choose another option, Yearout said.

“It would be entirely possible for the County Commission to file a court case against the Board of Zoning Appeals,” Yearout said.

Planning commission member Paul White argued the county tower was no different than a radio or cell phone tower.

“You’re saying a tower is an accessory use to a law enforcement facility, and it is also an accessory use to a radio station but the regs prohibit that,” White said.

Yearout replied: “This is not a radio studio, it’s an emergency communications center. You have to apply these in total, you can’t take them out of context.”

Mayor frustrated

Olson appeared exasperated after subsequent differences in interpretation among audience members and Yearout.

“I think I’ve heard enough to be really confused,” she said. “Maybe we just need to step back, take a cooling period.”

Kjellin said he sent a memo to council members July 6 telling them of the decision

“David said I didn’t need council approval. If you felt as though you wanted to have some say in it, I invited you to make it a line item in the agenda,” Kjellin said.

Three days later, there was no discussion of the memo at a July 9 council meeting.

“Stop just right there,” Olson said. “If we want to give you authority then we’re going to put it on the agenda, not by you saying OK you get the authority by telling us you’re going to do it if we don’t object.

“I want that in the minutes. I will not give authority to Mr. Kjellin on anything he says at the bottom of a memo that if you don’t object to this that I’m going to be able to go ahead and do it.”

Heitschmidt countered: “Marty had that power to do that as administrator. The zoning administrator conferred with the city administrator, the city attorney, and you (Yearout) as our adviser. I’m unclear whether it really had to come to the council.”

Yearout replied: “Your regulations invest that power in the city administrator. It doesn’t say subject to approval by the governing body. The city administrator should constantly keep you advised of what’s being done, and I think he did that.

“Right now an administrative decision has been made. In my opinion there’s clear legal authority for that to have been done. If this goes to the Board of Zoning Appeals, then it becomes an issue for them to decide. If it doesn’t then it stands.

“That’s just where it is.”

Last modified July 26, 2012

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