1/21/2019 11:20:00 AM Cass County Board: County officials get refresher on state laws
MONICA LUNDQUIST Cass County Correspondent
BACKUS-Jason J. Kuboushek presented a "Land Use and Public Hearing Training" for the Cass County Planning Commission and county board Tuesday, Jan. 15, following the regular county board meeting.
It was a close look at state laws governing public hearings, the open meeting law on government meetings, zoning variances, record keeping, conflicts of interest and court decisions, which have impacted how those laws are interpreted.
Kuboushek is an attorney with the law firm of Iverson Reuvers Condon Jasonk. That firm previously represented Cass County through the county's insurance with Minnesota Counties Intergovernmental Trust and directly as a county.
Cass County's planning commission also serves as the county's board of adjustment. The planning commission follows Robert's Rules of Order for meeting procedure.
Kuboushek said when a quorum of the commission makes zoning applicant property inspections, those meetings should be conducted in the same manner as a meeting at a county building, with a record kept of questions raised and answers given during the inspection.
Observations on the property should be recorded in notes. That record then becomes a part of the record for discussion at the public hearing on the application, he said.
Kuboushek repeatedly emphasized the importance of creating a public file of data for each application from the applicant's requests, staff data collection, site inspection and public input at hearings. He also emphasized each commissioner should wait to judge the application until all information has been presented at a public hearing.
At hearings on variance, conditional use, plat or land reclassification applications, it is the planning commission chairperson's responsibility to maintain decorum and not let discussions become unruly.
All information on the record concerning an application should be presented at the beginning of the hearing. Staff identifies documents on the record and explains actions the planning commission is allowed to take, Kuboushek said.
The applicant should be allowed to speak first, he said.
The public should be given a time limit before any presentations begin. Each person has a right to speak, but the chair does not need to allow cross examinations, he said.
Once the chair closes the public comment period, that ends opportunities for any member of the public to speak, he added.
Information taken during the hearing then becomes an additional part of the record, he said. Neighbors being wholly or predominantly in favor or opposed cannot be the only consideration in the planning commission's decision, according to Kuboushek.
When the planning commission takes a vote to approve or deny an application, the commissioners' reasons for their decision should be recorded along with the approval or denial.
That reasoning becomes important if a decision is challenged in court, Kuboushek said. If no or few reasons are listed, the court can find the decision was made arbitrarily and capriciously, he said, recommending the commission also tape record their meetings.
The planning commission must make a decision within 60 days from the date the complete application was filed with the county (Minnesota Statutes 15.99) or within an additional 60-day extension. Beyond that, the county would have to obtain a written, signed agreement from the applicant to make any further extension, Kuboushek said.
During on-site inspections, the public has a right to enter onto the applicant's property with the planning commission, but cannot be allowed to wander away from the group on the property, Kuboushek said.
If the applicant objects to one particular member of the public being on his/her property, the planning commission must move their meeting off the applicant's property, so no one is excluded from their meeting. Less than a quorum of planning commissioners could go back onto the property and return off the property to report information to the full commission and the public, he said.
No variance can be granted that:
Allows a prohibited use in the zoning district where the property is located.
Restricts storm water passage in a way that heightens flooding on adjacent properties.
Causes land uses detrimental to protecting ground and surface water.
Conflicts with land use or water plans or will increase/cause danger to life or property.
Is inconsistent with preserving natural landforms, vegetation or wetlands.
Results from circumstances the landowner created.
Does not change from a previously denied application.
All these criteria must be considered whether it is an application before construction or an after-the-fact permit application, Kuboushek said. Findings are important to list, he said.
Economic conditions alone cannot be used to approve or deny an application, Kuboushek said. Each property should be considered separately from every other property, even if similar cases have occurred in the past, he said.
If an applicant suggests trading removal of a non-conformity such as a shed or boat house in exchange for a new variance approval, the commission could consider that, but commissioners cannot suggest such a trade-off. If a commissioner suggests that, it could be considered a bribe, he said.
If a building project approved with a variance has not been completed within the two years Cass County permits allow, or four years with an approved extension, then the variance becomes invalid.
The county may set among conditions for a variance allowing county staff to inspect progress on the building project during the two- to four-year period or until the project is complete.
Public meetings of the planning commission should be on a published regular schedule or advertised as a special meeting three days in advance of the meeting and should be conducted at a location accessible to the public, Kuboushek said.
Requests for personal notification for meetings can be allowed to expire after a given time period.
Emergency meetings may be called by notifying all members by phone or other method and a good faith effort to notify the media. Closed meetings require notifications even though the public will not allowed to attend.
Meetings must be closed to consider misconduct allegations or non-public data such as educational or medical records or criminal sexual conduct allegations. Meetings cannot be closed to discuss other nonpublic data unless specified in a state statute.
It is a government body's choice whether to close a meeting for labor negotiations, attorney-client privilege, performance review, property purchase/sale or security data. When any of those meetings are closed, except attorney-client privilege, the meetings must be recorded.
Any time a quorum (four or more of the seven-person Cass County Planning Commission) would gather at the same location and potentially could comment on commission issues, they risk the public viewing it as an unadvertised meeting, Kuboushek warned.
Similarly, hitting "reply all" on emails also risks violating the Open Meeting Law.
He also warned commissioners that their personal email can be subpoenaed if it has been used for planning commission communications.
If a commissioner violates the Open Meeting Law three times, that person can be removed from office. It could invalidate commission decisions.
If the commissioner can be found to have specific intent to violate the law, that person can be ordered to pay a $3,000 penalty from their own funds and would not be covered by the government entity for that penalty, Kuboushek said.
On conflicts of interest, he said a commissioner should discuss the issue with the county attorney, then state on the record reasons for recusing themselves from voting on a specific application.
The commissioner who has the conflict should not participate from discussion on the matter and should leave the room when that application is being discussed and voted upon.
If someone does vote when they later have been found in conflict, only their vote will be invalidated. The decision then would be based on the votes of all other commission members.
Second publication rights after Brainerd Dispatch.