‘Right to enjoy our land’
vs
‘Right to benefit economically from my land’
Lazaro Aleman
ECB Publishing, Inc.
The problem of noisy affairs that disturb neighboring property owners is one that continues cropping up.
Especially as more property owners in rural areas decide to extract economic benefit from their holdings by sponsoring commercial activities.
Case in point, the most recent conversion of a property zoned agricultural into a weddings and entertainment venue – a trend that appears to be gaining popularity in Jefferson County, judging from the several applications that have come before the Jefferson County Planning Commission in recent years.
The latest application, which the Planning Commission first heard on Thursday, Feb. 25, and ultimately denied on Thursday, March 11, involved an applicant who was seeking a special exception permit that would allow him to use his 80-plus-acre property off Whitehouse Road as a wedding and special events venue.
Approved initially in about 2007 under the auspices of Homestead Ministries, the stated purpose on the original application was for the property to serve as a retreat for fathers and sons; a place where the latter could hold worships, celebrations, workshops and other wholesome and bonding events under the theme of Fellowship in the Field.
“Our goal is to reach young men and turn their lives around,” said applicant and property owner Mark Winchester.
Or, as it stated on the application, the facility would be used to educate, mentor and train fathers and sons alike “on what real manhood should be, based on God’s original creation.”
The problem, as Planning Official Shannon Metty explained it, is that over the years the facility expanded its sponsored activities to include weddings and other entertainment activities and taken on more of the nature of a commercial enterprise.
Too, she said, the structure initially approved was a pole barn, which required no permitting. Since, however, the barn had been fully enclosed and renovated absent any permit, she said.
What brought the application before the planners for consideration, however, was a notification of violation that the Jefferson County Health Department issued to Winchester in November 2020 for the inadequacy of the facility’s septic tank.
Which septic tank, according to the health department’s memo, had originally been installed to serve a single-family residence but “was now serving an event facility of over 6,000 sq. feet with an advertised client seating capacity of 80 or more people per event.”
The Health Department gave Winchester a set time to correct the cited problem by installing a proper septic system or face enforcement action, including daily fines of $500.
One planner wanted to know why the issue was even before the Planning Commission?
County Attorney Scott Shirley explained that before health officials would issue a permit for the replacement of the septic tank, the applicant had to have in hand a development permit from the county showing that the commercial enterprise was permitted. Which was why the applicant was seeking the special exceptions permit.
“This is an after-the-fact permit application,” Shirley noted.
Or as Planning Commission Chairman Michael Schwier more bluntly put it, the only reason that the issue was before them was “because Mr. Winchester got caught.”
The first hearing on Feb. 25 concluded with the planners putting off a decision on the application in order to allow Winchester time to meet with his neighbors and find a way to calm their concerns.
That was because several of Winchester’s neighbors had complained at the hearing that the noise from the various functions at the facility was excessive and kept them up at nights. They hadn’t moved to a rural area to be disturbed by loud music, they said. They also expressed concern their properties values were being lessened, as no one would want to purchase a property next to a commercial venue.
When the planners took up the issue again on March 11, Winchester said he had met with several of the neighbors and was intent on addressing their concerns. He cited several measures that he said he planned to implement going forward to keep the affairs in order and the noise level down.
Among the steps he proposed to take were monitoring the music level with a decibel meter to ensure compliance with the allowable decibel level; ensuring that the music stopped by 10 p.m.; and requiring that bands play indoors only, except for special occasions that would require prior approval by the property’s governing board.
Winchester also argued that what his organization was doing was allowed by state law under the umbrella of agri-tourism, which he said sanctioned specified commercial activities within agricultural area. Shirley, however, begged to differ, noting that state statute did not preempt local regulations in this instance, and that what Winchester was doing was a commercial enterprise in an agriculturally zoned land, which required a special exceptions permit.
The neighbors also continued to raise objections, noting that the noise sometimes continued as late as midnight; that the increased traffic in the neighborhood made pedestrian activities inadvisable; that the organization’s website showed that the venue was already booked for 40 events this year; and that that their right to the enjoyment of their properties was equal or more important than Winchester’s right to benefit economically from his.
In the end, the planners voted unanimously to recommend denial of the application. Meaning that the matter now comes before the county commission for a final decision, which body can choose to accept or reject the planners’ recommendation.
Too, when it comes to the county commission, politics not infrequently enters the equation, making it anybody’s guess what the final decision will be. Notably too, Winchester brought legal representation to the Planning Commission meeting, the introduction of which adds another element of uncertainty into the proceeding going forward.
Planning Commission revisits event permits
Lazaro Aleman
ECB Publishing, Inc.
It’s back to the drawing board for the Jefferson County Planning Commission when it comes to the temporary use permit, which the planning official issues for once-in-a-while festive events and that essentially aims to ensure that such affairs don’t get out of hand and disturb adjoining property owners.
Typically issued for large gatherings such as festivals, concerts and the like, the permits have not been issued since early last year, when the commission banned get-togethers of 50 or more people in an effort to curb the pandemic.
It’s expected, however, that the ban will be lifted in the foreseeable future as the crisis of the pandemic continues to subside, and especially as commissioners come under increasing pressure from events sponsors to lift the restriction.
In early February, the commission decided to extend the ban another 60 days until they could get a better handle on the state of the pandemic, based on the advice of a committee that included representatives of the Sheriff’s and Health departments. The decision was to revisit the issue again in April and decide then what to do, based on the latest information from the CDC and state health officials.
If the heated discussion of Feb. 4 underscored nothing else, however, it made clear the contentious nature of the issue, which pits property owners’ right to use their land for economic benefit, against neighboring property owners’ equal right to enjoy their land without being subjected to unwanted and bothersome noise or music.
As the rules for temporary use permits currently stand, they limit the number of such events to six per year, limit the hours during which the events may be held and set a decibel level that cannot be exceeded. The rules, however, haven’t always been followed, and it’s been difficult for officials to monitor and enforce the decibel levels.
Per the proposed language additions that Planning Official Shannon Metty presented to the Planning Commission for consideration on Thursday evening, March 11, the noise level of an event would be measured at the event holder’s property line that is nearest to a public or private right-of-way. “Provided, however, that in (case) of a complaint, noise level shall be measured at the property line closest to the property of the complaining party.”
The proposed language would also forbid noise that is more than 60 decibels at the property line between 10 p.m. and 7 a.m.
And it would put in place an enforcement mechanism via a special magistrate or civil citation procedure with applicable penalties “as staff may deem appropriate, as provided in the Land Development Code” or the Code of Ordinances and enforceable by a court of competent jurisdiction.
Reads the proposed language: “Both the property owner and the event permittee shall be liable for violations hereunder. It shall be deemed an uncured violation hereunder for noise exceeding the above level to last for more than 15 minutes in the aggregate after a warning has been given. Each such instance shall constitute a separate violation.”
“Right now, there are no noise restrictions,” County Attorney Scott Shirley told the planners. “This language is a baby step in the direction of doing a regulation, and it’s necessary because right now we have trouble regulating noise at these events.”
As Shirley explained it, if a property owner or permittee abides with a deputy’s request that the music be turned down, but the deputy then has to return because the music goes back up again once the officer has left the premises, each instance will be counted cumulatively until it reaches 15 minutes, at which point it will constitute a violation.
Mind, the language is only a proposal at this point. The planners barely had time to review it at the March 11, as the information was distributed late in the meeting.
The intent, however, was for the planners to take the information home and familiarize themselves with the language for their next meeting, when they will tackle the issue.
Mind also that the last time that the planners considered the issue about a year ago, the discussion went off the rails and ultimately accomplished little, a product of the varying and conflicting points-of-view on the board relative to regulations in general and particularly those restricting property rights in any way.
And no matter the outcome of the planners’ discussion and whatever their recommendation, the issue will then go to the county commissioners, who will have the final say on the matter and their own varying points of view on the issue. Let alone that politics will likely then also enter the debate.