News : Brown obtains permission to operate Red Shed Auto Repair, but at a price

Dean Brown made Benton County history on Wednesday, becoming the first person to ever successfully appeal a land use change rejection vote.

But the decision which finally lets him run Red Shed Auto Repair from the shop he built on his homestead north of Vinton came at a cost: $500 for the original land use application fee, $500 for the appeal fee, and approximately $500 he agreed to pay each year to the only neighbors who opposed him to cover one-third of their dust control bill.

“I’m just glad it’s over,” said Brown, as he stood talking to a friend in his shop after the three-hour meeting. After the Board of Adjustment publishes its decision, he will be able to officially run his auto repair business – with some conditions imposed by the Board and agreed to by Brown and Gary and Jill Marlow.

The ruling allows Brown to run his business, but he must limit traffic to his shop to between 8 a.m. and 5 p.m. on weekdays and from 8 a.m. to noon on Saturdays. He must also observe all holidays observed by Benton County, and cannot change the nature of the business. Brown also agreed to pay 1/3 of the cost of dust control for the Marlows, who treat the gravel in front of their home three times each year, at a cost of nearly $500 per treatment.

The three-hour meeting was the last of several meetings and discussions involving Brown and the Marlows and county officials since Brown first applied for his land use change in October.

Wednesday’s meeting included a long discussion of how two supervisors, Democrats Terry Hertle and Don Frese, voted down Brown’s request after hearing from Brown and Jill Marlow, the long-time Democratic auditor. Republican Todd Wiley was absent at that meeting.

Five members, only three votes

The Board of Adjustment includes five members: Joan Lindberg, Doug Stein, Steve Runyan, Dean Schminke and Karen Peterson.

Peterson was absent, leaving the panel with just four members. Then, after electing Runyan as their chairman, the board learned that Runyan would abstain from the discussion and vote.

In yet another twist, Benton County Attorney Dave Thompson read the county ordinance regarding the Board of Adjustment, which stipulates that at least three board members must agree on any vote. With just three members present and voting, that meant that all three had to agree unanimously for any decision to be binding.

Thompson said that it is legal, but maybe not smart, to have that rule in place. But, he affirmed, it is the rule by which the board must operate.

History

Brown and his wife, Taraca, received a land use change in 2006, which granted them to build a residence only – not a business – at 2374 55th Street.

When Brown, a long-time mechanic who worked at several shops in Vinton for many years, decided to work on his own from that property, he was required by county policy to seek another land use change. The ordinance allows him to build an auto shop on his property, but to run it as a business requires a formal land use change.

That process, said Land Use Administrator Marc Greenlee, is “somewhat customary.”

Greenlee said discussion in those supervisors meetings focused on CSR (Crop Suitability Rating), compatibility with current property and structures in the area, the impact on neighbors, and the overall land use pattern.

CSR was never an issue, said Greenlee; the county considers a CSR of 70 or above to be good for agriculture, but the CSR in that area in question on Brown’s property was just 25.

It was the compatibility and impact on neighbors that caused the discussion and the eventual rejection.

The Marlows claimed that Brown’s proposed business could hurt property values, and also raised concerns about increased traffic and dust.

Much of the meeting focused on the legal language of the county’s ordinance on land use, which dates back more than 20 years. Lawyers for both parties discussed the ordinance and the appeal process.

Negotiations

Ultimately, the three voting members of the Board of Adjustment decided that the main concern was with dust control, while agreeing that the compatibility issues were not in play in this case. Member Dean Schminke suggested the county should have a policy regarding dust control in areas where business or housing developments are located.

The Board of Adjustments is authorized to set conditions when they vote on land use variances, and the members decided to make dust control the main condition in this case.

After hearing from Brown and his attorney, the Marlows and their lawyer, and several audience members who spoke in favor of the project, the members began their deliberations.

Eventually they began asking Brown and the Marlows for areas on which they could come to an agreement.

The last part of the meeting focused on those discussions.

“They didn’t need a Board of Adjustment; they needed a mediator,” said one audience member.

Under the agreement, Brown will have permission to run his business, with the hours of operation limited to weekdays and Saturday mornings. He also agreed to observe the same holidays as Benton County employees, and to pay the Marlows 1/3 of their dust control costs.

The Board of Adjustment will soon formally put its decision in writing, at which time Brown can begin his business. But if he violates the terms of that agreement, he loses the permission to use his property for his business.

Fairness concerns

Thompson and Greenlee discussed the meeting in which Hertle and Frese voted down Brown’s request. Thompson observed how that during the heated discussion that November 17, Brown presented the supervisors a petition, as well as letters from those in support of his business. While the supervisors had discussed at length the concerns raised in a 3-page letter from the Marlows, they did not look at the information Brown gave them before voting – it remained on the table in front of them.

Thompson advised the Board of adjustment to rule that Brown’s information was not given a fair hearing by the supervisors

During an October meeting, the supervisors tabled the issue and advised Brown to go speak to the Marlows to work out their differences – a move that Thompson also criticized.

“We are here to clean up the mess, the hardship caused by those in charge of enforcing the ordinance,” Thompson said. “I don’t see how anyone could say it was a fair process.

As someone who would have to defend the county if the issue were to end up in court, Thompson said that a judge would not be happy to hear that the supervisors had not considered the information Brown had presented.