by Carrie Moritz, Gazette
The Garretson City Council met on Monday, December 7 in its regular monthly meeting. The main subject was a variance request from Nielson Construction, though the council also began the process of becoming a Tree City USA member, received an update about the 5th Street bridge project, and looked over requested Employee Handbook changes.
The first item on the agenda was to pass the Supplemental Appropriations, but due to computer issues that occurred with system upgrades, a special meeting had to be scheduled. The council will be meeting on Monday, December 28 at 6:30 p.m. at City Hall to discuss and vote on the supplemental budget.
Next was first reading for an ordinance creating a "Tree Board" in order to add Garretson as a Tree City USA member. The council members each agreed to be appointed as the Tree Board.
Tree City USA, which is a program under the Arbor Day Foundation, provides a framework to expand and manage public trees, according to the Arbor Day Foundation website. The program was recommended to the City by John Ball, the SD State forestry expert that has been working closely with the City as it replaces its ash trees. In order to become a Tree City USA recognized member, four standards must be met, including having a Tree Board, a Tree Care Ordinance, a Community Forestry Program that budgets at least $2 per capita for growth and maintenance of the program, and observes Arbor Day.
"Two dollars per capita is what we spend on salaries currently, so it's nothing additional for us cost-wise," said City Finance Officer Anna Uhl.
As a Tree City, it is hoped that Garretson could qualify for grants in the future for tree planting and maintenance.
After the first reading, the council voted to allow a variance for a fence to be placed on Austin Matthiesen's property line at 612 Sarah C Street, which he noted would be a shared fence with their neighbors on the west side. The council granted the variance, with council member Richelle Hofer abstaining due to it affecting her property as well, though she did not have any objections.
Council Splits on Variance Requests
The Nielsen setback variance request was brought to the floor for discussion next. With this request, the setbacks for the new homes built on Sarah C Street would be moved from 30 feet to 25 feet. At the time of the request, six foundations had already been laid, and it was discovered they were placed at 25 feet from the back of the sidewalk. City ordinance requires 30 feet unless a variance is issued prior to construction. Initial coverage of the variance request can be found in the December 3, 2020 issue of the Gazette.
The initial lot plans, which were approved in June of 2019, included a 30-foot setback. The building permit plans, which were signed off on by Garretson's building inspector in August of 2020, had a 25-foot setback.
Owner and CEO Kelly Nielsen defended his company's actions while showing the council the submitted building permit plans.
"This is just your standard building permit submitted to the City to get a building permit and it shows exactly where the houses were going to be staked, built, when we turn in and request a building permit," he said. "They reviewed them, kept them for a day or two, signed them, we paid to get a building permit, we built them exactly like how we said we were going to build them on the piece of paper we turned in."
The building permit, which was signed in August 2020, was signed by former building inspector Dave Swier. Swier ended his term in October, and the council approved the appointment of JR Hofer and Bill Pearson as building inspector shortly after. It was Hofer who discovered the setback issue and brought it to the attention of the City.
Nielsen would not say whether it was his responsibility or the City's to check the building plans against the ordinances.
"You could argue for it both ways," Nielsen said. "It wasn't intentional. Just in the process of the home-building side of the company, this is exactly what we do in every other community. If something's inaccurate, they correct it and make us change it before they give us a building permit."
Mayor Greg Beaner later clarified that no matter who signed off on the building permit, it is still the builder’s responsibility to ensure all ordinances and zoning requirements are met, and that variances are required to be requested prior to the first shovelful of dirt being turned or footing placed.
“The building inspector does not have the authority to override the council,” said Mayor Beaner during the hearing. "I don't understand why you would allow him to be your proofreader."
A long discussion found the council split on the decision.
"I just think that tearing out six foundations just isn't practical for anybody," said council member Dave Bonte. Nielsen later confirmed a vote no would cost his company approximately $200,000.
"So then are we willing to change our rule then, 'cause we're opening up a can of worms," replied council member Jodi Gloe. "I think our city policy needs to change then and we're going to have to go to 25 [feet]."
While the entire council wanted to maintain good relations with the developer, the split occurred over setting precedent. This would be the second variance awarded to Nielsen Construction after the fact.
Community members present wanted to know why the City had ordinances if they weren't going to follow them, and consistently allow for variances after rather than before. Randy Hoogland asked if it would be okay for other residents to add five feet to the front of their garages and ask for a variance afterward.
Sarah C Street resident Scott Hansen stated, "I've got a contracting background. From what I've seen, heard so far over the last few weeks, and being on that street, this has been a farce since the beginning. The setbacks, the distances between the houses are wrong, you bent over. Now he's sitting too close to the street, you're gonna bend over.
"I've been in commercial construction for 25 years. Something goes wrong with the foundation, we have to pull it out- fix it," he continued. "It should've been caught when the holes were dug." He pointed out that he could see right away that the fronts of the foundations weren't lined up with the rest of the houses along his block. Later, he said he, too, was split, because he could see the problem from both contractor and council points of view.
"I'm not sure how you could say, 'Well, we replaced the inspector and the new one caught it and the first one didn't, how that justifies, 'Oh, we're going to change this,'" said community member Bruce Brown.
The building inspector is there to confirm that it's done properly, Mayor Beaner clarified. The newest inspector was doing his job, measuring the foundations and checking setbacks, and that's when the issue was caught.
"The city's building inspector didn't do his job," said council member Bill Hoskins, speaking of the building permit. "He didn't make a comparison, he didn't look at the documents closely, and that's the rub."
Council member Richelle Hofer noted that the building permit does not imply that ordinances can be overruled, reading from a permit. "The building permit, he should've caught it there, but it also legally is not an approval to build against an ordinance," she said.
Variances are supposed to be granted prior to construction.
“Anytime you do something outside of law without a variance the city can come and tear it out,” said Mayor Beaner in a later interview with the Gazette. He noted at the beginning of the interview that court action by the developer was a possibility, so he didn’t want to say too much. “Having a variance hearing after the fact is not how it’s supposed to work.”
Nielsen expressed regret that it wasn't mentioned that setbacks were 30-foot anytime between when the building plans were submitted and when the holes were dug. If it had, he said, it would've been changed instantly, because 25-foot or 30-foot depth doesn't make a difference to them. He pointed out the company is in 12 other communities at this time, and they all have 25-foot setbacks. However, he insisted that the building inspector should have caught the issue rather than his company. Council member Jodi Gloe expressed regret that Nielsen's engineer didn't compare their building plans against the lot plans that had already been submitted and approved by the council.
"My biggest fear is that it's going to tarnish- that it already has tarnished, as this gentleman shared, what should've been a positive investment in this community, and it's just getting worse every time we get past these," Nielsen said, referring to three other requests he had made, including lot width, side setbacks and a cul-de-sac rather than a through street. He stated he was not looking to "get out of this for free" and offered to put $20,000 towards building the new half-block connection from Leslie Dr to Sarah C Street if the City would work with him.
Council members Greg Franka and Bonte pointed out that if these variances were granted, then it would be necessary to change all of the setbacks in the new development to 25-foot in order to keep the houses in line with each other. This encouraged discussion regarding changing the ordinance to 25-foot setbacks.
The discussion also noted that granting this variance could allow other members of the community to also consistently ask for variances after the fact, as precedence would be set. In the end, three council members voted against setting that precedent, and three council members voted to pass the variance requests. The tie-breaking vote was passed to Mayor Beaner, who voted "no."
“I think we have to follow the rules we have set,” said Mayor Beaner after casting his vote for no. He later noted that it was a very difficult decision for him to make, especially since it involved errors on both sides, but the City needs to start ensuring it’s working with the codes and ordinances it has set.
“I feel bad for all of us having to make that decision,” he clarified to the Gazette the next day. He noted that the council had already done the work re-setting zoning and ordinances before Nielsen entered the picture. “Council should’ve never been put in that position to make that decision in the first place.”
Employee handbook changes considered
City Finance Officer Uhl then went over proposed changes to the City Employee Handbook. She noted that the current employees had met to discuss any proposed areas for change, and they had suggested changes in only a few areas. Changes included eliminating required 15-minute breaks, working on Native American Day but giving a half-day off on Good Friday and Christmas Eve, removal of a section prohibiting employment of family members, and changing sick/vacation leave to accrual of PTO.
Uhl said it can be very difficult in a small town to have prohibitions against employing family members, but Mayor Beaner suggested perhaps it would be appropriate to make sure there was a note prohibiting supervision of family members.
For elected officials, the section on compensation had a suggestion to also include outside meeting pay, but only if the meeting pertained to the council member's specific area. This would prevent members from arbitrarily attending all meetings in order to receive compensation.
As this piece was informational, the council took no action, but discussed moving into executive session at the end of the meeting in order to speak more in-depth about the change from sick/vacation leave to PTO and comp time.
The council then heard an update from council member Hofer about two grants that are available for the bike trail, which she and Infrastructure Design's Chad Hanisch are working on. Mayor Beaner mentioned that he had met with MCEDA Executive Director Jesse Fonkert, who had said any connection the City can make to the state park will be a good thing.
"He said to go after that, and push that as hard as you can," Mayor Beaner said. Council member Hofer said she and Hanisch planned to get it done.
Hanisch then gave an update on the 5th Street bridge project, which would likely go out for bid in January. The work on the bridge will take the 5th Street route out of town out of commission the entire time it is being worked on due to structural upgrades that will be occurring. The council asked if he could coordinate with the contractor with regards to the completion of the truck route and with spring planting, and Hanisch agreed.
Council member Gloe then informed the council about a proposal to rent out a portion of the bathhouse for kayak rentals. While the official proposal hasn't been received, she said Sioux Falls Kayak Rentals would like to utilize one of the wings of the bathhouse to store kayaks and rent them out. She discussed some of the cooperative benefits this would provide to the city, including possible fundraising, helping with kayak launches, and promotion. Gloe and Park Board member Carrie Moritz noted that specific details will still need to be worked out, such as how to get the kayaks in and out of the wing, and whether city employees would be responsible for rentals.
Hanisch then gave an update on drainage requirements in the new development, noting that final grading has not yet been completed. Next, City Maintenance Supervisor Craig Nussbaum spoke about the possibility of adding another driveway into to the industrial development. At this time, he expressed concerns about ensuring traffic is slowed down, and having the driveway far enough away to allow for turning traffic.
Grow Garretson Light the Park committee member Carrie Moritz then gave an update on Light the Park in Split Rock Park, noting how positive the event has been for the city, despite possible costs that may be incurred.
Council member Godbey mentioned a negative interaction a community member had had with the code enforcement officer, and expressed concerns about other properties that hadn't been taken care of. He also wanted to clarify whether placing pavers under wheels would constitute a hard surface. Mayor Beaner said the ordinance is in place so that grass and weeds cannot grow under the object, and that a presentable yard is the goal. He pointed out that council members and community members can call or email the code enforcement officer any time to ask questions.
Council member Bonte then asked about starting a donation box for trees, which Park Board members Colleen Collier, Moritz, and council member Gloe confirmed was in the works, but wouldn't be moving ahead until after Light the Park is completed. If a tax-deductible donation is required, Grow Garretson would be willing to be a pass-through for those, but would prefer that most donations go toward the City.
At that time, the council voted to go into executive session. The next meeting of the City Council will be on December 28 at 6:30 p.m. at City Hall, and the next regular meeting will be on Monday, January 7 at 6:30 p.m. at the Legion.
