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Conflict of interest or campaign promise delivered? (06/16/2013)
By Sarah Squires

Steve Jacob campaigned with the promise that he would change the Winona County zoning ordinance; in particular, he pledged to remove the "nonconforming" label from properties that were legal under old ordinance regulations, but did not comply with the new, 300-page set of land use rules. A property or home considered nonconforming under the new ordinance may not be expanded, and in some situations, the county could force the home to be razed.

After working for months on proposals that would relieve property owners with land deemed nonconforming, Jacob has found a fix that would comply with state law, and one that would allow existing homes and feedlots to be expanded while not removing current regulations from large tracts of vacant land. He would like to expand the current "Rural Heritage" district to include all homes that existed prior to the new ordinance, as well as a 300-foot area around the structure. This would allow a home to be expanded, but would not remove new ordinance provisions — such as bluff setbacks — on vacant property.

Jacob is close to delivering the campaign promise he made, and appears to have the needed support from a majority of County Board members. He has also faced some vocal opposition to the plan, particularly from residents who have accused him of a conflict of interest, alleging his plan to modify the zoning ordinance stems from a desire to lift regulations from his own property.

The accusations have called into question the way that rural landowners are represented in local land use decisions. Should elected county leaders who own rural property be able to vote on land use regulations that would affect their own property? Or, should those decisions be left to elected leaders who don't have an interest in county-regulated land — namely, commissioners who live within city limits?

The questions prompted a recent memo about conflict of interest issues from Winona County Attorney Karin Sonneman. While her legal memo did not address accusations against Jacob specifically, in an interview with the Winona Post, Sonneman said that Jacob's zoning amendment did not constitute a legal conflict of interest.

"While it might appear to be a conflict, it's not," said Sonneman. Zoning decisions, she explained, are policy decisions that are duties of County Board members. If a member of the board or other county committee charged with zoning authority were to request a permit or ruling that were specific only to his property, that official would have a conflict of interest and would have to recuse himself from the vote, she said. Broad zoning decisions might affect virtually every landowner in the county, and to argue that commissioners should not vote on any measure that might have an impact on them — as it might affect any county resident — takes conflict of interest concepts to their "theoretical extreme," added Sonneman. An example of such a "theoretical extreme," agreed Sonneman, was raised during a recent County Board strategic planning session, when the board's decision not to impose a new vehicle tax was questioned, since commissioners all own cars and would have to pay it.

Sonneman was quick to state that conflict of interest laws are complex, and each situation must be examined to ensure a conflict does not exist. "There's no black and white on this," she said. "There's no hard and fast rule. Each individual, I think, needs to decide — do I have a conflict? Do I not?"

Sonneman said it might be best for commissioners to refrain from using their own property as examples when discussing county regulations, which both Jacob, and former board chair Mena Kaehler — whom he defeated for the County Board seat — have done. Jacob pointed to his own inability to obtain a permit to build a garage as an example of how the current Rural Heritage district language in the ordinance is vague and subject to interpretation. Kaehler, on the eve of the final vote on the zoning ordinance, refused to vote for the document unless stricter stream setbacks were removed. She had, in past board meetings, used her own property as an example for how tougher stream setbacks could be onerous for property owners.

"People, by nature, use their own experiences as examples," said Sonneman. She said that part of the reason it isn't a good idea for elected officials to use their own property as examples for the way regulations might work is that people might perceive the example as a conflict of interest. "There are always two things going on: there's perception, and there's reality," she explained.

Jacob's history with Winona County zoning

Jacob owns about 343 acres in Whitewater Township. He is a fourth-generation farmer; the farm was settled by Jacob's great-grandfather in 1878. His home is situated along the blufftop overlooking the valley at a spot where he said he's always known he would live. As a child, he told his parents and friends he would one day farm the land, and that he'd build his house at that exact, scenic spot.

On Jacob's acres are also two original farmhouses and five homes he built and rents. Following a dispute with the Winona County Planning department that stretched out over years and resulted in a lawsuit, which the county lost, Jacob also has four permits to build other houses on his land that he has yet to utilize. Four, he said, is more than he originally thought he might build, but after being mistreated by the Planning Department for so long, Jacob said his attorney recommended he get permits for the maximum number of homes he might ever build, and he did.

Jacob's dispute with the county stretched over more than three years, revolving around a driveway he built, and the way county staff handled his permit requests. While Jacob disturbed less than 500 cubic yards of material to build the road — which didn't require a permit under the old zoning ordinance — planning staff disagreed, attempting to count the amount of soil twice: once, as the shovel removed it, and again as the shovel set it somewhere else. From that point on, Jacob's attempts to get county permits were stymied, sheriff's deputies were sent to his house, and the matter was resolved in court. Judge Jeffrey Thompson ruled in Jacob's favor, ruling that "arbitrary and burdensome additional requirements have been imposed by the Planning Department," and, that the department's failure to enforce the zoning ordinance as written had caused Jacob damages.

The dispute didn't end there, however. Planning staff continued to put up new roadblocks to Jacob's permit requests for years when, in fact, he wanted to build the four houses on a spot where four quarter-quarter sections aligned — positioned so as to comply with the county's strictest density regulations. The history of Jacob's issues with the Planning Department is long and complex, and more can be found by visiting winonapost.com and searching "Planning Department throws up new barriers for Jacob."

Although Judge Thompson ruled that Jacob could sue the county for damages, Jacob never did. He said throughout his ordeal, he was concerned about the tax dollars being used by the county attorney's office and planning staff, and he didn't want county property taxpayers also to have to foot the bill for the damages he had incurred.

What he wanted, said Jacob, was to make sure that nobody else had to go through the zoning nightmare he faced.

The county was in the process of rewriting its zoning ordinance, and Jacob, along with hundreds of other Winona County residents, formed the "Landowners of Winona County" group. The group advocated for property rights as the ordinance was rewritten, with a focus on the "nonconformity" section that Jacob hopes to amend soon. A petition containing more than 1,600 signatures was presented to the County Board on behalf of the landowners group, that asked the board to vote against the entire ordinance, and the group prepared to sue the county if it did not.

"We decided the first method should be the democratic process," said Jacob of the Landowner group's decision against suing the county. Instead, group members decided Jacob would be the best candidate for a seat on the County Board. He won the November 2012 election, defeating former board chair Mena Kaehler, and Jacob's vote contributes to the board's will to change the ordinance into the majority.

"This amendment is going to affect thousands of properties throughout the county," said Jacob of the amendment that would remove the nonconformity label from county homesteads. In response to criticism that he has a conflict of interest, and is simply trying to amend the ordinance to benefit his own property, Jacob said all the houses he owns, except for the two old farmhouses, are already part of the Rural Heritage district, and, "This is about protection for other people." He decided to run for office, he said, because of a desire to answer this question: "What can I do so that other people don't have to go through what I went through?"

The zoning amendment was both an issue he campaigned on, and one that his constituents urged him to address, said Jacob, calling the change "the will of the people." "It's never been me and my agenda; it's been us and our agenda. That's why the people were strongly behind me — they wanted to see that change; they elected me to make that change."

Jacob said that the thought that a county commissioner who owns rural land has a conflict of interest in zoning ordinance decisions goes against principles of a representative government. "It completely eliminates the ability for the people who are affected by the laws to craft the laws that affect their property," he said.

New conflict of interest law

A legislative change signed into law in May will broaden current conflict of interest statutes that apply to county commissioners, which Sonneman detailed in her memo on the topic.

The law adds County Board members to the list of public officials covered by one of several conflict of interest statutes. Starting in January 2014, any County Board member elected or appointed after that date will be subject to the provision that formerly only applied to members of the state legislature and certain state agency directors. The law is similar to those already on the books for County Board members, but would require that any county action that would "substantially affect the official's financial interests or those of an associated business, unless the effect on the official is no greater than on other members of the official's business classification, profession, or occupation" that the board member must provide a written disclosure of any potential such conflict, and may have to abstain from a vote or decision on the matter.  


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