The city of Greenville Board of Adjustments met June 14 to host a public hearing on a code enforcement ordinance violation.
Here are the meeting's minutes, as provided by the board:
"The Zoning Board of Appeals shall hears all requests relating to variances from the city code and other adopted codes. The Zoning Board of Appeals will make a recommendation to the city council for granting or denying all requests."
Special Board of Adjustments Meeting Minutes Tuesday, June 14, 2016 5:30 p.m.
Call to Order
The meeting of the Board of Adjustments meeting was called to order by Vice-Chairman Kyle Littlefield at 5:30 p.m.
Roll Call
Present: Vice-Chairman Kyle Littlefield, Members Jeff Sedlacek, Chris Wagner and Rena Ward
Also Present: Dave Willey, City Manager, Joe Craver, Code Enforcement Officer, Patrick Schaufelberger, City Attorney, Jody Weiss, Recording Secretary, Councilman John Gillard, Don and Brenda Rogier, Kolin and Brianna Dothager, Leonard Taylor, Lisa and Ron Stephens
Review of Previous Minutes
The minutes of the March 22, 2016 Board of Adjustments meeting were reviewed. Moved by Wagner, seconded by Ward, to approve the minutes.
Ayes : Littlefield, Sedlacek, Wagner, Ward
Nays : None
PUBLIC HEARING
An appeal by Mr. Don Rogier of a determination of a code enforcement ordinance violation regarding grass and/or hay on vacant parcels, identified as Parcel #'s 05-10-12-326-001 and 05-10-12-135-001, commonly known as 1510 and 1510 Ballyvaughn Court.
City Manager Willey advised from the Staff Notes that the property in question is between two homes and the grass is above 10 inches. It is the Staff's opinion that this is a code violation and Mr. Rogier's opinion is the opposite of that.
The Public Hearing was opened by Vice-Chairman Littlefield at 5:35 p.m. Each person who gave testimony was sworn in by City Attorney Patrick Schaufelberger. Those being sworn in were Don Rogier, Lisa Stephens, Ron Stephens, Kolin Dothager, Brianna Dothager.
Mr. Rogier presented to the board as well as those in the gallery a written statement with several points that he was going to reference. His testimony was that when he purchased the property in the 1960's, it was zoned agriculture, and has been grandfathered in as such. He is currently taxed on this property as agriculture. The property in question has never been subdivided. The county put a parcel number on this property. He filed a preliminary plat to show how it was to be subdivided. Lots 1, 5, 6, 7 have been subdivided and sold, but not the rest. The city wanted a subdivision for expensive homes, and he built the subdivision at a large expense which he has not yet recovered. It costs a lot of money to build a subdivision, with sewer, water, street and engineering costs.
Mr. Rogier asked if anyone knew of Fescue 31? Fescue 31 is a commercial crop production, and crop production is allowed in all zoning areas. Fescue 31 is harvested for hay. He also asked if anyone was qualified to tell a professional farmer how to farm. City residents who have been a farmer are probably not qualified. He stated that he has made a living farming for over 65 years and knows something about farming. Crop production is not all in rows, and referred to wheat, oats and hay as examples that get 10" high. He commented that those are all allowed uses, and he asked Joe that was correct and Joe replied, Yes, Sir. Mr. Rogier asked that he get a copy of the ordinance that shows that information as correct. He noted to consider this spring and others, as the farmers could not get in the fields to farm and had a large crop of yellow weeds 10" and taller. Will the city tell farmers they have to cut even though it is wet? He suggested we don’t go there. The baled hay has been taken care of by Ron Schaufelberger. It was not done last year because the farmer that was to do that never showed up.
Mr. Rogier also stated that he has helped the city attract new businesses. He was helpful in getting Donnewald here. He has voluntarily annexed 309.64 acres to the city and has been paying city taxes with no benefits. He broke down the acreage: 60.47 acres in Section 14, 49.59 acres in Section 12 and 199.58 acres in Section 7. These are all in the industrial park area.
Mr. Rogier went on to say that others in the city have violated weed height for years and were never stopped. He gave examples of by the cemetery, the area north of Glenwood (future Dewey). Further, he has kept his subdivision mowed and looking nice, not because he has to, but because he takes care of his property by mowing around fields, etc. He rehabbed the building at 1444 Highway 127 at a large cost and could not rent for enough to pay the taxes and insurance. To keep the area from running down, he tore it down at a large additional cost. Without him, there would not have been over 100 new homes in Greenville in Crestview subdivision. He believes he has helped the city try and grow. He doesn’t understand why such a big deal over making hay on a few acres. The area in question has been harvested. Issues have been going on that he will get to later.
When he was a teenager, there was a neighbor who was very poor. And every year, they plowed about one to two foot over the property line. His grandfather owned the property right next to it. Finally he had enough and he hired a surveyor and had him come out and they surveyed it and got the people (neighbor) to come over and they were 18 feet over the property line. I can show you that property line today is still 18 feet over. Now Grandpa told them that apparently you think that it is going to make you rich, I'm going to let you keep farming and I am going to build a fence and you are not coming any further. So, that fence is still there today. That leads him to the question of why these people mow this lot, it's not really a lot, it's really a parcel, keeps mowing and nobody has ever asked permission to do it and they have been going over Rogier's property with no permission on both sides of it and mowing it and there is stakes piled up on the back corner of one of them on Rogier's property and the other side there is a row of berry bushes with at least one to two feet over the property line planted on Rogier's property. And he has put up with this; he hasn't said anything but it is coming to an end. So the bottom line is there will be a fence and it will stop.
He would like to point out a couple of other things. Pictures 1, 2 3 on it, has a parcel number on it, if you look to the right of the bottom of arrow. Red line goes to the left. That is the property line. The property line does not go out to the street. That white stake, which is on the other picture that Mr. Craver took, is on the corner of the property. That little triangle in there belongs to Rogier. There are two people that put a sewer line across that from the north and tied into that manhole in there with no easement. He has not said anything, but he is now. Rogier even went out there an hour ago and crawled in the manhole to make sure he remembered correctly. There are two sewer lines coming in there and they were put in the same trench, which is not legal. So he will leave that to Mr. Craver. That is right there in that little triangle. Rogier owns that little triangle and it goes with 1515. He has the legals on it.
Comp number 3 is where each parcel across the road is where the hay was also harvested across from Ballyvaughn. Any questions from anyone? Rogier stated he had enough of people walking all over him and has been a nice guy for long enough and turning the other cheek. He is a Christian but the time comes when enough is enough.
Littlefield asks if there are any questions from the board. Ward wanted to clarify that the property was grandfathered in is correct? Rogier said it was Ag when he bought it, which means it was grandfathered in. Any property that is bought is grandfathered in if it was prior to being brought into the city limits. Ward asked is it zoned. Rogier said once it is subdivided, it doesn’t allow to be agriculture anymore, and when he brought it into the city, they wanted it all brought in as R-1 in order to be able to put "nice houses" back there. The parcels have never been subdivided. Parcel 1515 is not in the city, and it is open to his valley so it can be de-annexed because it is not surrounded by the city. Same thing is true as the acreage in the valley. Rogier has the state statutes to de-annex, and if the city refuses he can go to court. He doesn’t want to do that but doesn’t want to be harassed by one acre of hay.
Sedlacek asked if he lived in one of these houses, and Rogier said no.
Littlefield asked Attorney Schaufelberger if he could comment on the grandfathered issue. Attorney Schaufelberger stated that the two issues you have to consider whether the use that Mr. Rogier was asserting was a continuous use. That is the first thing you need to consider. Is the activity within the spirit of the agriculture in the existing code? City Manager Willey stated that "grandfathered" is not a term that is used in the code, the code talks about nonconforming use. Nonconforming uses are allowed on any property that is brought into the city as long as that use is continuous. If the use has a gap, the nonconformity becomes disallowed. So for instance if you have a dynamite factory that is sitting across the street from us and it is annexed into the city, as long as it was a dynamite factory coming into the city, it can continue being a dynamite factory forevermore until the city purchases it or the factory closes and they no longer produce dynamite at that site. At that point, the nonconforming use cannot be used as a dynamite factory. So, that is a glaring example, but in the case of this farmland, grass grew on the farmland, grass grew to a height that it grew to, and it was never baled therefore, it is Willey's contention that is a non-continuous use, and it lost the ability to continue as agriculture at that point to continue in the existing use. Our code allows agricultural uses. Then the question becomes an issue of what is a crop, and what is agriculture. Craver expanded on that with what is being deciding on tonight is the definition of hay. His contention is that a cultivated hay crop, such as alfalfa or even grass hay that is cultivated there purposely is an allowed use in every zoning district within the city. If it is continuously baled, if it is harvested as a cash crop or for feed, it is absolutely the intent of the code, and will never write a violation for that. On the other side of that I understand Mr. Rogier's point of view that it is Fescue 31, I would almost agree with that, but Fescue 31 is a native plant. If you take any bare lot in town and scrape off all of the soil, part of what will grow is Fescue 31 or some variation of Fescue. Craver doesn’t believe that in plain language of the code, that is the intent of the section to let a native grown grass to get as high as you want to and then just occasionally bale it for hay when you get around to it. So that is the crux of the issue.
Mr. Rogier responded with the fact that the pertinent issue is the grass if you want to call it grass, is the fact that cattle grazed on it when he purchased from Mr. Mills, and the question really is, do you want to have what is there now or do you want to have corn that is 8 foot tall because that is an allowed use, and that is what you are pushing him to do. Attorney Schaufelberger commented that this a fair comment. Mr. Rogier went on to say that soy beans are more than 10 inches, and you can do milo. He has already spoken to Mr. Ron Schaufelberger, and they are discussing planting alfalfa because he has dairy cattle to feed. So that is what Rogier is getting pushed to, but would prefer to harvest it as hay.
Littlefield asked if at sometime this Fescue 31 was planted or was it crept in as Craver suggests. Mr. Rogier doesn’t know what Mr. Mills did before he bought the property in the 60's.
Littlefield closed the proponent portion of the public hearing.
Littlefield opened the opponent portion.
Lisa Stephens would just like an answer. They built their home on 1517 Ballyvaughn Court, and bought the lot next to it on the other corner. The lot is vacant, no home on it. She had spoken to Mr. Taylor who lives in the large house by Idler lane, as well as 1516 lot. She feels compelled to clarify something that she is strongly in disagreement with. When they built their house in 2004, their youngest child was a toddler. The grass was very tall and one day she got lost and disoriented, and Mrs. Stephens went to find her and told her not to go out in those tall weeds. Later, (doesn’t like animosity, would like to get along, but consider him a neighbor) in 2004, she approached Mr. Rogier, and he may not remember this (Rogier says no way) before comment made. Mrs. Stephens asked Mr. Rogier if she could mow his lot, he hum hawed, stated maybe he would have to contact his attorney, and Mrs. Stephens chuckled because she thought he was joking, but she just wanted to keep it down so it looked nicer. They agreed that she would mow it and was never contacted by his attorney and thought they were being a good neighbor by letting her mow it. For 11 years, she mowed the lot. He never told her she couldn't mow the lot. Everyone around had seen her mowing the lot. He knew she was mowing the lot. If he would have told her he was going to bale it, she would have stopped. She mowed from 2004 til 2015 the lot at 1515 Ballyvaughn. Mrs. Stephens has been told at least 3 different building code officers regarding this grass at 1515 Ballyvaughn Court, and has received 2 different answers. Mr. Taylor would like to know once and for all do you have to mow it or not. All the lots have the same kind of Fescue grass that Mr. Rogier has. In regards to stakes that Mr. Rogier was referring to, Stephens stated that they really do believe that they own the 35 feet in the corner. (Rogier says you better look at the stakes, they are right there where you can see them. Green Steel stakes with yellow on them. Not laying on the ground. Rogier has a picture of them on his camera.) Mr. Stephens stated that there are stakes on their property and Rogier or someone else put them there. Stakes go straight to a corner, to a point and then 35 distance from corner of the lot in the very back. Northern boundary is only 35 feet wide when it comes to an angled point. It is shown on the plat. Sewer top that he is talking about and in the triangle that belongs to Rogier, but not the Stephens sewer lines.
Mrs. Stephens stated and it was confirmed that the property was never baled in 2015.
Craver asked about clarification. Did you mow the entire lot, and she said that she used to mow the entire lot.
Mr. Rogier says the discussion never took place regarding the mowing. He has a very good memory and it never took place.
Littlefield asked if anyone else would like to speak in opposition.
Mr. Ron Stephens had a question for Mr. Rogier, have you ever brought it to the attention of myself, or any official in Greenville or Bond County that there was items such as fence posts in violations that were laying on your property? Have you ever brought it to my attention, by letter or in person or by phone? I compel you to answer that question. (SILENCE). Attorney Schaufelberger commented that since this is a Quasi judicial hearing that Mr. Rogier hold his thoughts on that, then once the opposition closes, they will then move back to Mr. Rogier to rebut anything that the opposing land owners have said and then the opposition will also have a rebuttal but only within the scope. Littlefield wrote the question down. Stephens asked Mr. Rogier if he notified anyone in the official capacity or the homeowner that they were storing something on his property and asked it to be moved. They did ask for permission to mow it and it was granted, verbally, and he has seen Mr. Rogier in the immediate area when he was mowing it over the past 13 years or so, and it was absolutely a known fact to anyone familiar with Ballyvaughn Court that the Stephens were mowing the property. If Mr. Rogier would have just told someone, maybe the person mowing it would stop. They have never been approached by the city, county or Rogier's to stop mowing. They stopped mowing the back but want it to look nice. They are not asking for dramatic change, but heard implied threats, I'll show you, I'll put a fence up, I'll show you. The city council and your approval decided to put up a little subdivision and we were close to it. That was going to affect property values. Be careful what you ask for. I thought it was going to be something negative in our neighborhood. Do you know what I hear when I get up? Children laughing and I love it. Come out there on a Sunday morning and sit on my deck and watch the cars getting packed up heading to church. A very positive impact on our community. I would still argue with you about how it affects the rest of the community, but that is what neighbors are for, and like, if you've got a problem with me, bring it to my attention.
Kolin Dothager wanted to make a comment about Mr. Rogier saying they have harassed him. They have mowed about five rows over to the east simply to keep them from the tall weeds. Bad ticks, snakes, woodchuck, raccoons, and they are just trying to keep their yard nice and keep the kids as far away from those tall weeds as possible. They had no ill intent towards anyone so if Mr. Rogier feels the Dothagers have harassed him, Mr. Dothager apologies. They simply mowed a few rows over to keep it looking nice.
Brianna Dothager stated when they moved in the lots were being mowed by their gracious neighbors, but didn’t know it at the time. Mrs. Dothager appreciated that, and then it seemed like an issue, so they stopped mowing the entire lot, but appreciated they mowed the front of the lot. Her preference is that it is grass, understands that they need to follow the codes, but grass would make it more attractive to sell to future owners. They will be happy to replant their berry bushes. They were not aware they were planting on Mr. Rogier's property. They don’t want to encroach on someone else's property. If there is a fence, she wouldn’t necessarily mind because that would be help keep the snakes and foxes out of her yard.
Mr. Rogier takes exception to harassing anybody. He has never harassed anyone. He knows what right is right. He was brought up to respect other people's property. The conversation about asking to mow my property has never ever occurred and will swear on the Bible to that. All Mr. Rogier is asking is to keep doing what they have been doing, which is a heck of a lot better than corn or something else and Mr. Ron Schaufelberger will keep doing it (mowing), because the other people weren't reliable. Mr. Rogier has temporarily put up the white fence to show the property lines for his mowing and to do what he is going to do. When Craver advises what is allowed and not allowed, that is what he will do.
Littlefield asked Mr. Rogier if Mrs. Stephens was mowing the property entirely for several years. Mr. Rogier says might have been one or two, but doesn’t remember how long, but again, was never asked. Littlefield's question is if it was being mowed entirely, then is it correct to say there was no hay being baled. Mr. Rogier says that is correct but on the flip side the guy that was bailing it was deprived the hay and the crop that was on it. Mrs. Stephens said eight years in a row, and "I won't pay you" is what Mr. Rogier said.
As far as the Dothager's go and the row of berries, they are pretty big so when did you buy the house? Mrs. Dothager stated they bought the house in 09, but just planted the bushes last year. According to Mr. Rogier, they are about 2 feet over the property line. Mrs. Dothager said there is a fence in between them, so.
Attorney Schaufelberger stepped in and asked that everyone keep the comments to the perimeter. If Mr. Rogier is addressing about her berries, she can rebut. Mr. Rogier is fine if she wants to move her berries, and he wouldn’t ask if this issue hadn't come up. But he happens to know what the law is about adverse possession. Somebody possesses your property for a long period of time they can claim it and he was getting concerned about that also.
Mr. Rogier said that Mr. Taylor is here now, and is glad. It was asserted that his property is all mowed, the piece across the lot that his son owns by the cemetery is part of the same process, the same kind that Ron Schaufelberger baling.
Littlefield asked if Mr. Rogier had ever notified the neighbors of his displeasure of them mowing his property. The answer is no. I tried to be a good neighbor. The mowing got further and further. Dothagers moved in and they have been mowing about 30 feet over.
Mrs. Stephens starting mowing in 2004 for 8 years up until now (til he put the fence up) was only mowing the lot 1/3 of the lot. They have a lot of walkers, and the grass gets so tall they couldn't see. If Mr. Rogier really didn’t want her mowing it all of those years, why didn’t you just tell her? She would have stopped.
Littlefield redirected to address the board.
Mr. Rogier wanted to correct what was said. It has been mowed about 50 feet over, not just the front but also the east side. Stephens said that was what she mowed.
Attorney Schaufelberger suggests closing the public portion of the hearing. Littlefield wanted to see if Mr. Taylor wanted to testify regarding the issue.
Mr. Taylor apologized for coming in late, but it is what it is. Have you stated what the rules or bylaws of the subdivision are? Littlefield interrupted to get Mr. Taylor sworn in as he came in after the rest of the witnesses had been sworn in. Mr. Taylor was sworn in. Is it part of the bylaws of the subdivision that the lots be mowed? Craver says yes that the staff believes it should be mowed. Attorney Schaufelberger, there is another issue as to where this is the spirit of the agriculture being conducted there. That is something that BOA has to decide on. Mr. Taylor testified that he has seen the Stephens mow it, to the degree that he thought they owned it for several years. It looked great. He has seen Mr. Rogier mow his on several occasions and seen him mow it less and looks like he now considers it county. The property across from Taylor's house which is close to the cemetery, Mr. Taylor never doubted that it was a not part of a subdivision and mows according to the requirements of the city. Beautification is a key for us, safety as far as reptiles, and a haven for raccoons, rats, raccoons, etc. Subdivisions need to look nice. If it is not a requirement and city doesn’t require it, so be it. Mr. Taylor wants the subdivision to look nicer than it looks now.
Attorney Schaufelberger will give Mr. Rogier a chance to rebut. He asked Craver to explain how much having a higher overgrowth enhances vagrant animals, etc. Craver advised that there is no real hard data on animals, reptiles and bugs. I believe it is common knowledge, at least in this room, that higher grass is a haven for those types of animals to be there, but I don't know how to quantify in an overgrown field to a manicured lawn. Craver believes it to be common knowledge that the rates of those animals would increase. Mr. Taylor stated there are a lot of animals that come in the yard.skunks, raccoons, squirrels, snakes and when lights come on they scurry to the higher grass.
Mr. Rogier stated 1, 2, 3, 4, 8 are not lots and not in a subdivision. It has never been plotted as a subdivision. He did a preliminary plat to show how it would be laid out, and in fact #2 is south of Taylor's house and hasn't heard objections to the corn or other crops there. Bottom line is those lots are not a subdivision. They are a preliminary plat that has never been subdivided and all started because of the way the county was taxing Mr. Rogier. So if Mr. Rogier sells one now, he will have to form a one lot subdivision because the county jacks the real estate taxes way up on it.
Littlefield asks for a motion to close the public hearing portion of the meeting. Wagner made a motion to close and Littlefield seconded it. All voted in favor to close the public hearing.
Ward stated that it can be stated as a fact that there has not been continuous use. Some of these issues do not pertain to what is being voting on tonight.
Attorney Schaufelberger stated if the consensus is that you ascertain that there was not continuous use, then the nonconforming use argument would go away. The issue then is what is a crop. Ward was astute to bring that up. Littlefield agreed with that as did the rest of the group. Littlefield asked what is the definition of hay. He learned that hay is planted and grown for livestock by asking farmers. The staff notes use the word cultivated. Craver said cultivated hay crops are an allowed use. However, native grass that just grows there on its own, you don’t fertilize, you didn’t cultivate and you occasionally have someone come cut it for hay, in his opinion, is not the intent of the code. Either the city or maintenance code that deals with grass and weeds. Littlefield looked at the code and referenced Table 153.0202(A) and then looked at the next paragraph and talked about crop production and it gives a subcategory for hay and reads: Establishments in this class grow hay, alfalfa, clover or mixed hay. Hay is really general. What is the difference between Fescue and alfalfa and clover? He learned that there are two different kinds of hay. There is legume hay and there is grass hay. The legume hay are the types that specifically get called out, but not the grass hay, but again, hay is just one word hay. It seems it could be interpreted as all inclusive. We should consider the word intent, and what is the word intent. If we took this to the logical conclusion anyone could just say I don’t want to mow my lawn because I want to bale it for hay, but on the other hand, the reason is there is the spirit of the law and the letter of the law is because intent matters sometimes and doesn’t matter other times. In reading the code, and we don’t know the intent that the council or the writers of the UDO when they wrote the code, we don’t know the intent of the word hay. Attorney Schaufelberger asked if there was a definition of hay in the code, and Craver replied no. Littlefield says you called this quasi judicial and you either hold the people accountable to the intent or hold them accountable to the text. If Littlefield doesn’t understand that hay is only legume hay, then he may feel like he is ok to grow any hay, because hay is hay as it is stated in the text. There is more than intent to be considered, you have to consider the text as well. The intent is clear to Littlefield, but is the intent what matters, or is the text that matters. Sedlacek said it is important to the definition of weeds to include uncultivated areas, specifically excluding the uncultivated plants. It is not something that is planted there to grow Fescue 31, azaleas or anything like that. Littlefield agreed and said that is why he asked was it planted, whether it 50 years ago.and who knows at this point. Schaufelberger pointed out that Craver's assertion that it would give license to anyone to say mow your yard because the neighbors are upset, it seems like a reasonable spirit and intent of the law.that may be those who have residences who refuse to mow it, but he could envision that it could be concern later on.
Ward asked is this a subdivision or is it not a subdivision? Are there covenants of any type? Attorney Schaufelberger referenced two things. When you talk about the term subdivision, we are talking about preliminarily platted and final plats and are sold as lots. Craver advised that would be overly broad, but yes correct definition of a subdivision in the code. Attorney Schaufelberger said so they have to be a certain size, with setbacks, etc. Craver said that is correct. Attorney Schaufelberger advised that is one thing you need to consider is that is this a subdivision? Secondly, the issue of covenants for people who are private landowners is always a protocol for the enforcement of covenants. Contained therein and not sure if these folks.the remedy is you and I live next to each other and we both believe we are bound by a set of covenants that were recorded at the conception of the subdivision then you probably have a private enforcement remedy against me, sue me to compel me to stop what I am doing. That probably is not germane to this administrative hearing but to the UDO. But, it is a good point. City Manager Willey stated he didn’t know if there were covenants at this particular subdivision. Craver doesn’t know either, he has never seen a plat for this subdivision.Ward asked is it a partial subdivision or a platted subdivision. Craver cannot answer at this time, but he knows there are 911 addresses on both of these different pieces of ground. Willey said both lot has a 911 address which is an indicator that this has been divided in some way. Whether they have been recorded final or not does not germane.Attorney Schaufelberger then added if it wasn’t platted, then what would be the requirements for the lots?
Mrs. Stephens asked to address the board. She was told at the Bond County Courthouse Annex that there were covenants and had to send building design plans to Mr. Rogier and at the time had to mail them to Florida, and he had to approve them and that the homes had to be at least 1500 square foot and some other covenants were in there too to make sure the Stephens abided by. They always assumed it was a subdivision because when they bought the lot she was given a map of all the lots in the subdivision and easements and set up about there. It is called Executive Estates, so they always assumed it was a subdivision.
Ward asked for a copy of the preliminary plat.
Mr. Rogier asked to speak again. He said if you bother to go to the courthouse and check you will find that each of these lots that were sold were plotted as one lot subdivisions. They were not all eight lots. Those eight on there were preliminary to show how we intended to do it if and when it happened. Crestview subdivision has over 100 lots and the preliminary plat for that entire subdivision when we started and we followed it in order to have a nice product when we got done. We did ten to fifteen at a time because they were smaller. This lot number 2 what it shows as 2, 3, 4 & 8 are not in a subdivision but only in a preliminary plat. And you can check that at the courthouse. Schaufelberger asked if that has any bearing on this issue, and Craver advised he didn’t believe it did on anything being decided on this evening. The plain text of both codes says within land of the City whether if it is in a subdivision or not. Littlefield asked if it is taxed as an agriculture as farmland, that is a county office that decides how a property is taxed. It is up to the City to determine is how it is zoned. Littlefield asked does that it is taxed as farmland have any bearing on whether it needs to follow this code. Willey said no. Attorney Schaufelberger stated you are down to the fact of how do you define agriculture. Willey agreed and said yes, definition of agriculture as well as continued use. Littlefield believes they crossed the issue that this property was not a nonconforming use. Grasses would include wheat, corn, barley, oats are also commonly known as crops. We need to decide is there something different about Fescue 31 other than what Craver pointed out as those things need to be planted and not just creep in. City Manager Willey indicated the question is, was this cultivated on the site purposely for hay production or is it a method to get rid of tall grass. To simply call it hay and bale it and sell it for that purpose. It is legitimate animal feed, but the issue is whether it is a crop being cultivated for that purpose or is it just a method to keep the weeds down. Craver added a method to "skirt" the ten inch that is within the code. City Manager Willey stated another opportunity that says it could certainly cut for hay when it reaches ten inches and then bale accordingly, that wouldn’t be an effective method of baling hay. Attorney Schaufelberger added that it would keep you in compliance, though.
Littlefield asked for any other thoughts, questions? Is anyone prepared to make a motion?
Attorney Schaufelberger advised the quasi judicial hearing it says at some point when you are done deliberating you need to find some "finding of fact". Conduct and activity is in your view of agricultural, or did not.
Mr. Rogier stated that the grass didn’t get there by itself. Mr. Mills planted it way back.
Littlefield asked do they agree is fescue hay a crop or not? Ward understands that it was planted at some point but not by Mr. Rogier. It could have been planted, or it could have crept in. Mr. Rogier believes it was planted, but he didn’t plant it, and the prior owner is not here to tell us.
Attorney Schaufelberger asked Craver to elaborate on "native grass". Craver stated that grass that would grow if no one was around, like a prairie. It would be a type of grass, not the only one but a type of grass. City Manager Willey advised that would be natural grass due to birds planting their seeds and other natural transfers.
Ward asked if they are not prepared to make a final decision.
City Manager Willey said you have the option to postpone to a date certain and reconvene and continue deliberations, you can try to reach a conclusion tonight still, you could adjourn to do research of your own that would allow you to reach a conclusion. There is no requirement that you reach a conclusion tonight, unless you are prepared, but if you feel like you would like research that you would like staff to conduct, if you feel there is other information that you are lacking that would give you a better ability to make a decision, you should instruct staff to do what you would believe to have done to allow you to make a decision. Attorney Schaufelberger added that it is common that you have a right to take things under advisement. 1. You don’t want to be constrained by time. 2. You can invite interested parties to do more research. 3. You can do your own research. City Manager Willey then stated that you are not allowed to meet outside the public eye to discuss this issue and try to reach a conclusion. You are required as any public body is, to meet in public, and that is for the benefit for all of those present so that deals aren't made in the background and special consideration that has not been made public is not given. It doesn’t prevent individual research, staff providing information, any of that is totally legitimate.
Mr. Rogier stated it has been mowed and baled, so now you have the luxury of time. Attorney Schaufelberger advised that the members go out and take a look at the property individually.
Ward is not ready to make a determination, not sure how everyone else feels. Wagner and Sedlacek feel it would be helpful to take a look at the property before making a decision.
Vice-Chair Littlefield stated the conclusion of this discussion will occur on the date certain of Tuesday, June 28 at 6:00 p.m., and Ward seconded.
Ward made a motion to adjourn, Wagner seconded. All voted in favor. The meeting adjourned at 7:15 p.m.
Respectfully Submitted,
Jody Weiss, Recording Secretary
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