[youtube]https://www.youtube.com/watch?v=tpFvQHUbBCU[/youtube]
So here is our question. You buy a place you call home. You live a good life with your family, friends, neighbors and visitor on the property of your dreams. Then one day orange signs get posted near you and your world changes.
We saw it every day in Sioux Falls since Shape Places was passed. Neighborhoods are being uprooted and changed forever because a dot was changed on a map or a mysterious zoning change happened. What are your chances you can go down to a city board and seek protection. Remember, you are only a lowly citizen and not a casino owner, developer or a Walmart. Zilch according to Jeffrey Schmitt, of the Sioux Falls Planning Office. Zilch, Nada, Nothing.
Whether or not you think this is an appropriate location for this type of use, you should be concerned when Planning Staff gives guidance to the Planning Commission that is directly contradicted by the Zoning Ordinance that governs the city staff and Planning Commission. Shape Places has more built in “automatic” conditions (regulations) on uses and thus less conditional uses. However, there are still some conditional uses like this one. There is a reason for that. If city staff instructs the Planning Commission that they CANNOT DENY a conditional use, and the ONLY conditions they can consider are SEVERELY LIMITED (BOTH of which are NOT supported by the PLAIN LANGUAGE of the ordinance and by CASE LAW), what is the point of a conditional use hearing? What input do citizens have?
Jeffrey is a stinker.
I’m guessing when Jeffrey said “Zilch”, he said it with a big smile on his face!
He was one of the main players in crafting Shape Places…
I would point out I supported Shape Places, and I still do, at least the TEXT of it. Also, in this particular case, Shape Places didn’t really change anything substantively over the 1983 ordinance. It still requires a conditional use permit hearing. The issue is what staff is telling the Planning Commission and citizens in regards to what can be considered and what their powers are. The ground rules are presented in such a way that it renders the hearing almost irrelevant. While Shape Places has more built in rules including many things a conditional use would have added typically, there still are conditional use cases, and the code (as well as city application forms and handouts for conditional uses) both make it clear it can be denied and the PC can add conditions at their discretion. Its not unlimited, just like any board, they have to base their decisions on what the ordinance empowers them with, specifically the conditions would have to further the comprehensive plan and/or promote the general health, safety, and welfare of the city (that is pretty wide latitude I’d say). So they aren’t unlimited. I assume if they conditioned the use on it painting the wall green, that condition wouldn’t survive an appeal because you couldn’t really demonstrate that has anything to do with anything in the comprehensive plan and it doesn’t mitigate anything. My main point is though that the PC can add conditions, and they can deny a conditional use. That’s what the code says. If the city wants it to be diffrent, then they can bring a ordinance amendment forward that says the Planning Commission SHALL approve a conditional use. But as it stands it says “MAY” and the code is abundantly clear they (and the city council) have discretion. It is also clear in the code that the specific standards are not the only standards and conditions that can be placed. A useful illustration is the Rapid City code, which says specifically that a off-sale alcohol establishment SHALL be granted a conditional use permit if it can demonstrate X, Y, and Z. It specifically says SHALL. The Supreme Court of SD ruled in an appeal that the Planning Commission had to issue the conditional use in that case because the code was clear with the word SHALL that they had to issue the permit if the applicant could satisfy the specific conditions, and they did. The bottom line is that the opinion that the Planning Commission cannot deny a conditional use and they can only consider the specific standards for the given use is just that, an opinion, and nothing more. Until it is in ordinance, its meaningless, and has no business being presented at the hearing as the ground rules. I happen to know Jeff personally and respect and like him, but I respectfully and strongly disagree with him on this one. He has been doing this a long time, so I am tempted to defer to him to some degree, but I can’t ignore the plain text of the ordinance.
How convenient. Exciting casino robberies, drunks, and school bus stop pedophiles. Right out your door. If you’re looking for a safe wholesome neighborhood, proof you must settle outside city limits. Suburbs listen to citizens, afford them appeals, and respect democracy. Sioux Falls (like North Korea) is an important example of suppression. Next, their own time zone and border walls.
Many tried to warn that Shape Places was too full of holes to be a good plan. Told you so. (Wish it felt good to say that.)