Business zoning debates prompt questions about enforcement

In at least three recent meetings, residents have questioned the way in which Brown County Planning Director Chris Ritzmann and attorney David Schilling have interpreted and enforced the Brown County zoning ordinance.

Resident Sherrie Mitchell has been the most frequent objector. In October, she challenged a special exception that had been granted to her neighbor, the Buccos family, for its logging business in January 2020. Ritzmann wrote a staff report for that case which led to the Brown County Board of Zoning Appeals OK’ing the family’s request. The BZA later voted to revoke that special exception because the property’s zoning was not what it appeared to be, but Ritzmann is reviewing whether or not the business could still be allowed under a clause that covers business activities that existed on a property before the county had a zoning ordinance.

Mitchell is pursuing the case further in Brown Circuit Court, alleging that the law was misinterpreted. She was seeking reimbursement of her legal fees and an injunction against the business, but Judge Mary Wertz ruled against her requests on Feb. 2.

In December and January, Mitchell challenged a case that was settled out of court regarding a landscaping contractor, Jerry Cowan, whose business is based at his home. Ritzmann and Schilling, acting on behalf of the Brown County Area Plan Commission, had sued Cowan on the grounds that the use of his property for this business had exceeded what is allowed in a residential zone. In November, Cowan and his attorney signed a settlement that included a $10,000 fine.

Mitchell has repeatedly stated her concern that the Cowan decision endangers the ability of other home-based contractors throughout the county to continue to run their businesses, and she is arguing that nothing in the law prohibits what Cowan was doing. She also plans to pursue this issue further in Brown Circuit Court.

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Who does what?

Ritzmann is the head of the county planning office. Two citizen boards also participate in the process: the Brown County Area Plan Commission (APC) and the Brown County Board of Zoning Appeals (BZA). Schilling works with all three entities.

The county’s zoning ordinance explains the responsibilities of each player.

The APC contains seven members appointed by various local government agencies. That board makes recommendations to the county commissioners or town council on matters related to the comprehensive plan and zoning ordinance, and on land development in Brown County.

The county planning director has the principal responsibility for enforcing the zoning ordinance. The ordinance says that the attorney is required to deal with possible land use violations that are contrary to it “upon any such violation having been called to his/her attention by the plan coordinator,” which is the same as planning director.

The planning director has the discretion to seek, with the assistance of the attorney, several types of civil remedies “upon a reasonable belief that a person is violating a provision of this ordinance, or a condition, requirement or commitment” made under it.

Available remedies include a civil penalty of up to $10,000 per day; a restraining order or injunction to prevent the person from violating the ordinance; or an injunction directing a person to meet a requirement under the ordinance or remove a structure built in violation of the ordinance. Any of those remedies “may be sought by any property owner specifically damaged by any such violation,” it reads.

Neither the APC nor the BZA has to approve that action before it happens.

Any decision of the planning coordinator enforcing the ordinance can be appealed to the BZA “by any person who is adversely affected by the decision,” the ordinance reads. The BZA can then “make any decision that the planning coordinator might have made.”

The BZA’s decision can be appealed, too — to Brown Circuit Court.

That is what Mitchell said she plans to do after the BZA voted down her appeal last week regarding the Cowan case.

The Cowan debate

Mitchell had wanted the Brown County Board of Zoning Appeals to review “the determination and application of the law used to fine and stifle Jerry Cowan’s business,” saying that her contractor husband and others like him were now in danger of being shut down because of the precedent that had been set.

Mitchell was told that the window to appeal had closed because the rules only allow 45 days. Ritzmann and the BZA were considering the date that the Cowan court complaint was notarized, Sept. 24, 2019, to be the start of that clock, not Nov. 13, 2020, the date the case was settled out of court. Mitchell filed her appeal with the planning office on Nov. 25, 2020.

Cowan could have appealed to the BZA before the 45-day window closed, but neither he nor his attorney did that.

Mitchell also complained to the BZA about how her request to appeal was handled. When she visited the planning office to file her paperwork, she and members of the staff got into a debate and police were called. Ritzmann would not permit her to appeal the original decision in the Cowan case; based on the 45-day rule, the only thing Mitchell could appeal was Ritzmann’s denial of her request to appeal the original decision.

Mitchell told the BZA at the Jan. 27 meeting that she thinks the attorney and planning director misinterpreted the ordinance again.

BZA member Darla Brown, who is also an attorney, said she didn’t interpret the BZA appeals process to be used as a way for a person to insert themselves into litigation when they aren’t directly involved. The BZA voted 4-0 with member Debbie Bartes absent to uphold the denial of Mitchell’s appeal.

After the meeting, Mitchell said she plans to seek a court ruling about whether or not the BZA should have heard her complaint about the merits of the Cowan case. Brown had said that she didn’t think Mitchell had standing, or the right to challenge it.

Who knows what?

The court case against Cowan was filed in the name of the Brown County Area Plan Commission on Oct. 21, 2019. The first complaint against him came into the planning and zoning office in April 2019, and zoning staff worked through a series of steps including a visit and written notices to try to resolve the issue before going to court, Ritzmann said.

At last week’s APC meeting, two of the newer board members said they didn’t feel like they knew enough about the case to answer questions they were getting about it from the public, or to understand if actions like this are helping to achieve the goals of the zoning ordinance.

Members Andy Voils and Kara Hammes asked for the APC to get regular reports on enforcement actions going forward. Voils joined the board in December 2019; Hammes joined it in May 2019.

The ordinance says that the APC can sue or be sued collectively, and the president of the board is to be served with that paperwork. Dave Harden was the president at the time of the Cowan case; the president is now Carol Bowden.

Last week, Ritzmann said that it had been common practice, going back to the previous planning director, Dave Woods, for the director to receive notice of litigation instead of the president of the APC.

“If you desire to have monthly reports on pending litigation, or if you want us to bring cases in front of you for approval before filing them, that’s up to you,” Schilling told the APC.

Voils said he didn’t know if it was for approval so much as for awareness.

Since the APC is tasked with periodically reviewing the zoning ordinance, Hammes said it would be helpful to know how the ordinance is being enforced so that APC members can see if it’s achieving what they intended to achieve or if certain parts of it need to be reworked.

Schilling said the kind of update they were requesting was provided in the past but “it just fell off” at some point. Ritzmann said that some updates can be seen in the zoning inspector’s monthly report, where APC members could follow along with how certain interactions were progressing before they progress to court action.

A court case search for “Brown County Area Plan Commission” shows fewer than 10 civil cases for ordinance violations filed in the past 10 years.

“Eventually, it gets to a point where we have a discussion, the zoning inspector and I, and decide if it’s time for Dave Schilling,” Ritzmann said.

Voils said he wasn’t saying that’s not how it should be done; as a member of the board, he just wanted to understand the facts of each case to know why those particular steps were taken.

“If we have pending litigation and citizens are paying a large amount of money to settle or whatever … I’d kind of like to know details before I’m asked questions about it,” he said.

Ritzmann said she was OK with adding that to her office’s monthly reports.

“We learn from our lessons and we improve our processes, and we move on,” Bowden said.